Courts: Costs

Lord Ackner: asked Her Majesty's Government:
	Whether they will accept the recommendation of the Civil Justice Council in its response of 17 November 2005 to the Department for Constitutional Affairs for a fundamental review of the policy to charge litigants in the civil courts the total costs of running those courts less fee exemptions and remissions.

Baroness Ashton of Upholland: My Lords, our policy remains that court fees should be set to reflect the cost of the service provided. It is right that, where they can afford to do so, litigants using the civil courts, rather than the taxpayer, should meet the cost. I am conducting a review of exemptions and remissions to ensure consistent operation and adequate protection for access to justice.

Lord Ackner: My Lords, it is common ground that the Civil Justice Council is there as a watchdog over the civil courts and that in the past the former Chief Justice and the Chief Justice before him have combined with the council and the Council of Judges to condemn the policy that has just been mentioned.
	I should make it clear that this is not a frontal attack on the noble and learned Lord the Lord Chancellor, Dieu soit merci; it is a frontal attack on that most powerful member of the executive, the Revenue. The Revenue has decreed that full costs incurred in the civil courts should be recovered. It is what has been colloquially known as the cream of the office cat. Would your Lordships not agree that it is totally wrong and has been condemned on the basis that it interferes with that vital concept of access to justice? Will the noble Baroness say how she can fit the two in together?

Baroness Ashton of Upholland: My Lords, I pay tribute to the work of the Civil Justice Council, with which I have had the pleasure of working closely. The concept of full cost recovery in one sense misleads us because the taxpayer makes a significant contribution—in 2004–05, nearly £104 million or about 23 per cent of the total costs involved. I repeat what I said at the beginning: we believe that the policy that we are pursuing is appropriate and correct and that it ensures, alongside the issues of remission, that those who need access to justice get it.

Lord Thomas of Gresford: My Lords, does the Minister agree that the consultation paper suggests that the cost of modernisation of the Court Service will be paid for, at least to a considerable degree, by fees? Is it right that today's litigant should pay for investment in IT and technology for the future?

Baroness Ashton of Upholland: My Lords, it is important that we consider the modernisation of our court system, including a fundamentally important part of that—the use of new technology. It is appropriate that, when looking at how best to fund that, we bear in mind not only the system that we have for the present but the system that we have for the future. In that sense, the measure is appropriate.

Lord Woolf: My Lords, would the Minister be kind enough to tell me whether fees will be put towards the costs of setting up the new Supreme Court? Is that being taken into account in the full cost recovery questions that she has considered? On this occasion, the noble and learned Lord, Lord Ackner, did not do justice to the strength of the concern about the issue, which, I am sure the Minister will agree, is widespread among the judiciary, as he omitted to mention that my successor is equally concerned about costs.

Baroness Ashton of Upholland: My Lords, issues to do with the Supreme Court have been debated in your Lordships' House, and I will write to the noble and learned Lord to set out precisely the basis for the funding for the court. The noble and learned Lord will know well—he has been involved in it—the importance of making sure that we have that fully covered.
	My noble and learned friend the Lord Chancellor and I are well aware of the strength of feeling in the judiciary. We listened carefully during the consultation and made changes as a consequence of some of the representations that were made to us. We are a listening government and a listening department.

Lord Ackner: My Lords, no one has made reference to the fact that the provision of a civil litigation system is in the public interest, as it provides a civilised way of effectively dealing with disputes. It goes beyond the ordinary question of what the litigant gains; the public make a substantial gain. Accordingly, there should be a contribution from general taxation, and costs should not be left solely to the litigant to cover, particularly as some of the cases are decided for the general benefit and good of society.

Baroness Ashton of Upholland: My Lords, as I indicated in my earlier response, the taxpayer makes a significant contribution. In 2004–05, the taxpayer paid 23 per cent of the cost; I agree in that respect with the noble and learned Lord. I also agree that it is important that we make sure that people have access to justice. Hence, as I indicated, I am looking at exemptions and remissions to ensure that we have got that right for those who need that additional support.

Lord Inglewood: My Lords, bearing in mind the Minister's reply to the noble and learned Lord, do the Government have a standard, benchmark percentage of the total cost of the civil courts that it is deemed appropriate for litigants to pay? How do the Government arrive at what is a reasonable balance?

Baroness Ashton of Upholland: My Lords, I am conscious of time. The Government look carefully at how we bring together all our work in the civil courts. The noble Lord will know that a great deal has gone on in recent times to look at the modernisation of the estates to ensure that we support our judiciary appropriately and that we approach all those seeking justice in the right manner. I will write to the noble Lord and set out some of the detail, as I do not wish to take your Lordships' time at this point.

EU: Turkish Accession

Lord Dykes: asked Her Majesty's Government:
	When they next plan to hold discussions with the European Commission on the opening by the Austrian presidency of preliminary chapters in the long-term negotiations for Turkish accession to the European Union.

Lord Triesman: My Lords, the Commission presented its first screening report on the science and research chapter to member states on 7 February. Discussions are ongoing with our EU partners and the Commission, and we hope that it will be possible to open the first chapter during the Austrian presidency. Throughout negotiations, the United Kingdom will seek to ensure that Turkey is treated on its own merits just as any other candidate would be.

Lord Dykes: My Lords, I thank the Minister for that Answer. Obviously, it would be a fantastic geopolitical, humanitarian, international and cultural achievement if Turkey were to become a member of the European Union. Although they are long-term negotiations, will the negotiators be able to cope equally with the fantastic economic and social challenges posed by a nation of 85 million by 2016 and all the attendant adjustments to the budget, with massive additional budget support presumably being necessary by that stage?

Lord Triesman: My Lords, as the noble Lord has said, it is an onerous task, and we are pressing at all stages to ensure that Turkey takes the appropriate steps in its economy, human rights record and other areas to meet the full conditions, chapter by chapter, of the acquis. However difficult it is, we will do it carefully, and my expectation, as is the noble Lord's, is of a successful outcome of the process.

Lord Anderson of Swansea: My Lords, there is consensus in this country, if not in France and Germany, in favour of Turkish accession if Turkey meets the appropriate conditions. There have been some disquieting features in respect of human rights in recent months—perhaps my noble friend will comment on that—and equally in respect of Cyprus. What movement has there been on Turkey having a more positive view towards the problem of Cyprus?

Lord Triesman: My Lords, accession will be a significant accomplishment. My noble friend alights on two issues that should cause all of us concern. There are significant issues on human rights. They will be subject to intense scrutiny during the negotiations, and I hope that that process will open them up. On Cyprus, at the moment there is no meeting of minds, either among the Greek Cypriot community or the Turkish Government. They are hard issues, and they will be hard to resolve.

Lord Pearson of Rannoch: My Lords, are the Government aware that the French and Austrian peoples have been granted binding referenda on whether Turkey should be allowed to enter the European Union? Do the Government agree that Turkey's entry is, in any event, unlikely unless the French and the Austrian peoples can be persuaded to be less hostile towards it over the next few years?

Lord Triesman: My Lords, the countries that have decided to hold referenda will, plainly, have a pretty high hurdle to climb over. I hope that we will have resolved the fundamental questions by then. I suspect that, if they are not resolved, the outcome will be disappointing. I hope that those who have supported enlargement on all sides will work hard to ensure that it is successful, not least to the benefit of the Turkish people.

Lord Watson of Richmond: My Lords, can the Minister give us his considered view of what, apparently, is the preferred course of a number of continental European countries; namely, that we have the target of privileged partnership status for Turkey?

Lord Triesman: My Lords, my view is that we can enlarge Europe to include Turkey, making plain our commitment to the economic benefits and to the benefits of having a major secular Muslim nation inside the European Union. That will be to the greatest benefit of us all.

Lord Astor of Hever: My Lords, as long-standing supporters of Turkey's EU membership, we have long stressed the importance of real improvement in human rights and freedom of speech in that country. Does the Minister welcome the decision to drop charges against the writer Orhan Pamuk, and does he agree that that decision moves Turkish membership a step closer?

Lord Triesman: My Lords, I thoroughly agree with what has just been said. That was the right decision. I hope that the fact that the case of a very high-profile and very distinguished writer has been dropped will not remove the focus from some of the less high-profile writers who are still in the spotlight. Human rights have to relate to distinguished as well as undistinguished writers.

Lord Hannay of Chiswick: My Lords, what is the Government's reaction to the proposals by the Government of Turkey last week for free trade in the eastern Mediterranean? Does he not think that that might make some contribution to the vexed problem of Cyprus? Does he not also think that the Cyprus Government's reaction to those proposals—that there is nothing new—better described their own reaction rather than the proposals themselves?

Lord Triesman: My Lords, I took comfort from the proposals, and I think that they offer some progress. Recent responses, including the refusal of the Greek Cypriot Government to see the Foreign Secretary, are not helpful. Without partisanship, there is a requirement on everyone to try to talk through the problems and to make the progress that is needed. Almost anyone can put a road block in the way—that is the easy bit—but getting through to a proper solution is the hard bit. Let us go for the hard bit.

Lord Stoddart of Swindon: My Lords, the accession of Turkey would mean close on 100 million new people entering the European Community and extending the borders of the European Union to Asia. Should we not also have a referendum in this country, as they are having in France and Austria?

Lord Triesman: My Lords, I am sure that Parliaments in the United Kingdom will look at each successive accession proposal and consider where enlargement takes us. We have been served well by discussing accession legislation in our House and in the other place and by considering the relevant amendments very thoroughly. I do not think that has done us any harm.

Roads: Quiet Lanes

Baroness Scott of Needham Market: asked Her Majesty's Government:
	When they will issue guidance to local authorities in respect of quiet lanes designated under the Transport Act 2000.

Lord Davies of Oldham: My Lords, the guidance is being finalised and will be published as a Department for Transport circular as soon as possible, in parallel with some associated regulations.

Baroness Scott of Needham Market: My Lords, is the Minister aware that, in July 2002, in response to a Written Question in the House of Commons, the Parliamentary Under-Secretary gave an undertaking that the guidance would be published by the end of that year? Does the department occupy a sort of parallel universe in which a single year stretches into infinity, or does the Minister have some guarantee that when he says it is this year, he means it? Does the Minister think that it is acceptable for the provisions of primary legislation to take six years before they come to the House?

Lord Davies of Oldham: My Lords, I mean 2006. If the noble Baroness, Lady Scott of Needham Market, is suggesting that the delay over the regulations is causing widespread national concern, all I can say is that the concept of quiet lanes is a local issue par excellence, for local authorities to define and act on. They can already act in those terms without the regulations. Whether they are acting or not is a question for the local authorities, and I wonder why the House is concerned about the issue at this stage.

Lord Hanningfield: My Lords, the Question is about quiet lanes. In view of the congestion statistics that the department published yesterday—congestion has gone up by 11 per cent in the past seven years and is now the worst ever by far, with no hope of declining—is every road not shortly to become a quiet lane, with traffic at a standstill? Perhaps the Minister could comment on yesterday's figures.

Lord Davies of Oldham: My Lords, I congratulate the noble Lord, Lord Hanningfield, on moving off quiet lanes. Congestion is a national issue, but I do not think that the noise factor is crucial to it; rather, the effect of congestion on our economy is crucial. The noble Lord will recognise that the Government are investing heavily in roads and seeking ways to facilitate traffic. He will be aware, for instance, of the widening of the M25, which has increased traffic flow around the crucial area near Heathrow Airport.
	There are measures in hand. The noble Lord will have seen the investment projects for the extension and widening of roads in this country. We are investing in transport, but we recognise that the congestion question is one of how we shift to alternative forms of transport, not just roads.

Lord Tebbit: My Lords, if the Minister thinks that we should not be wasting our time on this issue today, why on earth did the Government ask us to legislate on it a few years ago?

Lord Davies of Oldham: My Lords, the Government legislated for enabling legislation for quiet lanes. We thought that we might then enjoy a quiet time and that local authorities would recognise the opportunity to identify the limited areas of road space that could be used for horse riders, pedestrians, cyclists and absolutely minimal forms of road traffic; designate them as quiet lanes; and encourage their use by those more benign road users. We did not think that it was a national issue.

Lord Bradshaw: My Lords, we have experienced the issues that my noble friend raised in her Question several times. The guidance on the licensing laws was a long time in coming. The Minister knows that the guidance on the use of cameras in bus lanes has been put off year after year. Is it not time that, when the Government come before the House with legislation promising to bring orders and statutory instruments, they should be produced at least within two years, otherwise the Government should have to come back to the House to renew their promises?

Lord Davies of Oldham: My Lords, government legislation is meant to last for a considerable number of years. It often contains clauses that will be enacted according to demand, but they are there because we are a far-sighted Government and can recognise that the need might occur in the future, when it would not be appropriate to introduce fresh legislation. I merely maintain that the regulations will marginally enhance local authorities' powers on quiet lanes, but authorities that want to provide them can do so now.

Lord Stoddart of Swindon: My Lords, as president of the British Trolleybus Society, can I suggest that one of the best ways of achieving quiet lanes is to bring back the trolleybus?

Lord Davies of Oldham: My Lords, I have always looked on the noble Lord as being at the forefront of technology and progress.

Immigration: Detention Centres

Lord Avebury: asked Her Majesty's Government:
	Whether they have any proposals to introduce further measures to prevent suicide and self-harm at immigration detention centres.

Lord Bassam of Brighton: My Lords, the Government take such issues very seriously. Every Immigration Service removal centre has measures in place to help identify and monitor those who are considered to be at risk of suicide and self-harm. Since 1989, there have been 12 deaths in immigration detention; seven have been investigated by the Prisons and Probation Ombudsman—one is continuing—and we consider carefully his reports and recommendations, particularly for lessons that may be learnt for the future.

Lord Avebury: My Lords, considering the number of deaths in immigration detention centres given by the noble Lord and the fact that the Chief Inspector of Prisons mentions suicide no fewer than 19 times in her most recent report on a detention centre, Harmondsworth, does the noble Lord not think that it is damaging to the credibility of the whole service when long delays take place in bringing them before coroners' courts? Are any steps included in the announcement made by the Solicitor-General last week concerning the reform of coroners' courts that will speed up the reports on the deaths in immigration detention centres and the consequent reports by the prison ombudsman, which always appear several months later?
	Can the noble Lord also say whether he has read the article in the BMJ last week, which said that it was questionable whether effective psychiatric services could be provided in an environment of prolonged detention such as we have in the centres? Will he say what is being done to reduce the length of detention and thus the likelihood of self-harm and suicide?

Lord Bassam of Brighton: My Lords, I should make it plain from the start that we are concerned about this area, and of course the reports to which the noble Lord has referred are important and telling. Steps are taken to ensure that we adopt the best practice. We are working carefully with the Prison Service to ensure that when it changes its procedures to a new system we adopt that new system as well. It is regrettable that cases take a time to come to coroners' courts, but the coroners' courts process is very rigorous, and it is only right that due process is seen to be operating properly. It means that the issues are considered thoroughly, which is to everyone's benefit, not least those who endure a period of time in Immigration Service detention.

Lord Corbett of Castle Vale: My Lords, will the Minister confirm that in some cases of unexpected deaths in detention centres the coroners' courts take between two and three years to hold an inquest? Is that not unfair on the relatives and the family, and does it not mean that it takes much longer than it should for the lessons to be learnt from those tragedies?

Lord Bassam of Brighton: My Lords, as I made plain in my initial comment, it is regrettable that the cases take time to come before coroners' courts, but it is right too that thorough consideration is given and that proper reports are prepared for the coroners to consider. I do not have precise statistics on the periods of delay; there have thankfully been only 12 deaths in custody since 1989 of the sort to which we are referring. We take them very seriously, and we try to learn the lessons from every instance that has occurred in the detention centres. We care greatly to ensure that such occurrences do not happen in the future.

Viscount Bridgeman: My Lords, will the Minister consider whether the problem might be alleviated by having adequate translation and interpretation facilities at the centres?

Lord Bassam of Brighton: My Lords, the Immigration Service makes thorough use of translation services. It has access to a wide range of those services, and it takes expert advice. I am not aware that a lack of understanding of the sort to which the noble Viscount has referred has been a particular problem in any of these cases.

The Archbishop of Canterbury: My Lords, is the Minister aware that chaplaincy arrangements in such detention centres are, despite the best efforts of many dedicated individuals, all too often profoundly inadequate, being done under the auspices of the curiously named "managers of religious affairs"? Does the Minister agree that a lack of proper professional and pastoral support for those who are made vulnerable in this situation, coupled with the tendency at times to move detainees between locations at indefensibly short intervals, simply aggravates the problem? Our attention has been drawn this afternoon to the tragic and appalling consequences of the lack of access to dependable long-term pastoral support.

Lord Bassam of Brighton: My Lords, I take seriously what the most reverend Primate says in this instance. Clearly, we need to do more to address the important issue of chaplaincy services. It is an important issue, and I know what comfort they can bring. We will take urgent steps to review the issue that the most reverend Primate has drawn to our attention.

Lord Dubs: My Lords, perhaps I can press my noble friend further on the time delays that he talked about. He will appreciate that we are limited in the questions that we can ask about anything that is coming before a coroners' court, for reasons to do with the Companion. However, perhaps he can answer this question: why does it take three years before a coroners' court can deal with a matter in which an individual has been found hanging and is dead in an immigration centre? Surely even the most thorough scrutiny of the matter by the coroners' court does not take three years.

Lord Bassam of Brighton: My Lords, I appreciate entirely the noble Lord's concern. I am as concerned as he is, and no doubt the Immigration Service is as well. We do our best to ensure that such cases are brought forward in an expedient and timely fashion, but I will go back and review the periods to which the noble Lord has drawn attention. I agree that we require that all of the cases take the shortest period possible, as that would be to everyone's satisfaction.

Baroness Williams of Crosby: My Lords, would it be possible to consider carefully the policy of moving people frequently between detention centres? In addition to pastoral support, the welcome and compassionate help of the friends of various detention centres who extend the hand of friendship is crucial in preventing people being driven to despair. Will the Minister therefore look to see whether the Home Office policy of constantly moving people from one detention centre to another, breaking those crucial relationships, can be carefully reconsidered?

Lord Bassam of Brighton: My Lords, we try to ensure that the movement of people from one detention centre to another is kept to a minimum. Most people do not spend a long period in detention centres, and the vast majority of those who do spend any time in them are there for up to only two or three weeks. It is not in anybody's interest that people are moved frequently. We try to ensure that all the rights to welfare and support services are plugged in. However, one has to accept that these are difficult cases involving some complex issues that we are dealing with. We try to act in everyone's interest.

The Earl of Listowel: My Lords, is the Minister particularly concerned at the state of mind of mothers in detention who have children under the age of three? Will he undertake to examine carefully why increasing numbers of such mothers are experiencing detention pending removal for purely administrative reasons and not to prevent their absconding?

Lord Bassam of Brighton: My Lords, I know that the noble Earl has a great deal of experience in this. It is a tricky and complex area. It is not our desire to keep families in detention centres for great lengths of time. The information that I have suggests that most families spend only a reasonably short time in the centres. It is probably in some of those families' best interests that they are there. We try to keep families together. If we were to adopt a policy of removing children from the detention centres, they could be separated from their mothers in particular and their families in general. I do not think that that would be desirable at all. As we speak, as I understand it, only approximately 70 children are held in detention centres. I cannot say that that is an absolute figure, but we try to keep the number to a minimum. At the forefront of our minds in this policy, the welfare of the child must be the first consideration.

Lord Judd: My Lords, does my noble friend agree that the gravity and urgency of the issue is underlined by the wider concern—central to our preoccupations in the House—about how we win the battle for hearts and minds in our efforts to contain global terrorism by reducing the number of anxious, alienated people on whom extremists can play? It is not simply a matter of our immigration policy and how it is administered; it has implications for that wider issue as well.

Lord Bassam of Brighton: My Lords, I think that we as a country do our level best in tackling illegal immigration, which is at the core of the issue. My noble friend is right: we must be seen to treat people fairly and reasonably, and that is what our procedures aim to do. That is why at any one time we have, relatively speaking, a very small number of people in immigration detention. They are there for particular reasons, and that is quite right. Within the immigration detention estate we try to treat people fairly and properly and ensure that they have proper access to welfare and legal services so that their cases can be dealt with promptly, fairly and reasonably.

Statutory Instruments

Lord Brabazon of Tara: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That the Lord Gould of Brookwood be appointed a Lords member of the Joint Committee on Statutory Instruments in the place of the Baroness Goudie.—(The Chairman of Committees.)

On Question, Motion agreed to.

Occupational Pension Schemes(Levy Ceiling) Order 2006

Baroness Amos: My Lords, I beg to move the first Motion standing in my name on the Order Paper.
	Moved, That the draft order be referred to a Grand Committee.—(Baroness Amos.)

On Question, Motion agreed to.

Regulatory Reform (Forestry) Order 2006

Baroness Amos: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
	Moved, That the draft regulatory reform order be referred to a Grand Committee.—(Baroness Amos.)

On Question, Motion agreed to.

Work and Families Bill

Lord McKenzie of Luton: My Lords, I beg to move the Motion standing in the name of my noble friend Lord Sainsbury on the Order Paper.
	Moved, That it be an instruction to the Grand Committee to which the Work and Families Bill has been committed that they consider the Bill in the following order:
	Clauses 1 to 11
	Schedule 1
	Clauses 12 to 15
	Schedule 2
	Clauses 16 to 20.—(Lord McKenzie of Luton.)

On Question, Motion agreed to.

NHS Redress Bill [HL]

Report received.

Baroness Barker: moved Amendment No. 1:
	Before Clause 1, insert the following new clause—
	"METHODS OF REDRESS
	The ways in which redress may be sought are through—
	(a) the National Health Service Litigation Authority,
	(b) a specified dispute resolution service independent of the health service in England or Wales as defined under section 6(2A) and (2B),
	(c) civil proceedings, and
	(d) a redress scheme as defined in this Act."

Baroness Barker: My Lords, it is some considerable time since Members of this House considered this matter in Grand Committee. The intervening time has been used extremely wisely—the noble Earl, Lord Howe, and I have had the opportunity to meet a number of the professional bodies such as the NHS Litigation Authority, ACHCEW and others. They have generously spent time explaining to us a great deal of the background to the Bill—I believe that the Minister knows that we have had that information. I think he would agree that that process will turn out to be beneficial to the whole House as we move on to the next stage of the Bill.
	At the outset of our proceedings, I apologise for the absence of my colleague and noble friend Lady Neuberger, who noble Lords will know has done a great deal of work on this matter. My noble friend is abroad fulfilling a commitment she had undertaken before she became a Member of your Lordships' House. It is a matter of considerable regret to her that she is not with us, and to me, given her knowledge and expertise on this subject—as will become evident throughout the afternoon.
	It is correct at the beginning of our discussions to go back to where we left off at the end of Grand Committee proceedings. Throughout Grand Committee, we returned time and again to our central concern about the Bill: the lack of independence in the process. I put on record my thanks to the noble Lord, Lord Warner, for two lengthy letters that he sent to me and to the noble Earl, Lord Howe, in which he addressed in great detail a number of concerns that we had raised. However, the central point about which we were at odds with the Government—the independence of the redress scheme—was not addressed entirely satisfactorily in those letters. That is why we have tabled a number of amendments that we will discuss in some detail this afternoon, which set out an alternative way in which the redress scheme could be made to work with greater independence, which we believe is crucial to the integrity of the scheme and the esteem in which patients will hold it.
	Those arguments are principally captured in Amendments Nos. 22, 23, 26 and 42. In essence, as I and the noble Earl, Lord Howe, have set out in detail, we take on board some of the criticisms that the Government have made of our earlier proposals and ensure that there is a two-stage process for people seeking redress under the scheme. The first part of that is an independent finding of fact. We will set out later how that should be done. Once a report that covers that finding of fact is made available, someone who wants to take the matter further has a number of options.
	The reason for moving the new clause now is to set out those different options—the different means of redress that would be available to anyone who had received a report of a finding of fact that there had been an adverse treatment of them by the NHS. To spell it out, those different means of redress could be the NHS Litigation Authority; a dispute resolution service; the right to go to court, which they retain; or a redress scheme as defined in the Bill.
	In proposing the new clause, I make it absolutely clear that although we have reservations—indeed, we disagree—about the extent to which the Government propose in the Bill that the NHS Litigation Authority be involved in the scheme, we do not suggest that it should not be. There is a role for it to play, as there is for a Resolve-type scheme for someone, once they have had that finding of fact. So the new clause sets out the beginning of the argument that we shall make for the rest of this afternoon. I beg to move.

Earl Howe: My Lords, whether or not the amendment is strictly necessary to the Bill, it seems to me to have its heart in exactly the right place. I have no hesitation in supporting a very great deal of what the noble Baroness said. The new clause has a number of things to recommend it, not least its value as a declaratory statement prefacing what follows. I absolutely agree that patients need to be told at the outset of the grievance process that there is more than one way for them to proceed to seek redress and that the NHS redress scheme, envisaged in the Bill, is but one avenue that they can choose.
	But there is another dimension to this. We will discuss in our debate on a later group of amendments, which I shall not anticipate now, although the noble Baroness has foreshadowed them very helpfully, a key bone of contention between this side of the House and the Government—the need to separate the two halves of the redress process into its functional constituent parts, and to treat them as distinct.
	What will happen initially is that the hospital whose actions have given rise to the application will carry out a factual investigation. It will examine what was done, by whom, and why. In my very firm opinion, this fact-finding investigation should remain just that. It should steer clear of attempting to lay blame or of ascribing legal liability. All that should be for later. It should confine itself to a factual explanation, and I shall say more about that later.
	Once the hospital has done this, there is a very strong argument for the patient to be brought right back into the frame. The factual explanation should be presented to him with an apology, where appropriate, together with a clear statement of what lessons have been learnt by the trust to prevent similar errors happening in the future. It will then be possible for the patient to take stock. One option might be to take the matter no further. Another might be to ask the NHSLA to examine fault and legal liability under the Government's redress scheme. Yet another would be to seek a mediated settlement through a Resolve-type process. And another might be to go to court.
	One of the things that has consistently troubled me about the Government's model for redress is that once an application has been made to the redress scheme, and scrutiny of the case commences, the process continues inexorably to its conclusion through investigation, summarising evidence, proposing remedial treatment, assessing fault, and arriving at an offer of financial compensation until finally the NHSLA presents the results as a sort of comprehensive redress package to the patient.
	I do not think that that all-in-one process is desirable, for reasons I will come on to later. But I also believe it is not necessary, because in very many cases all the aggrieved patient wants is an explanation, an apology, and a real sense that lessons have been learnt. The money, for a lot of people, is very often secondary. But where the money is not secondary, I believe the patient should be able to choose how he wants to proceed on the basis of the factual investigation.
	It is clearly for the noble Baroness to decide how far she wants to press the amendment, and what importance she attaches to it in the context of the rest of the Bill. The Minister will probably say that, in substance, it is unnecessary. However, I hope he will take on board both the rationale and the strength of feeling that lies behind it.

Lord Warner: My Lords, I understand the strength of feeling and the rationale, although I do not necessarily accept the rationale behind the new clause, as I will explain. We have had a good rehearsal of the issues in and around independent investigation, and I will set out our views on that when we come to the amendments that are more relevant to that issue.
	I want to explain why we believe that there are no good reasons for including this new clause in the Bill. The purpose of a Bill of this kind should, of course, be explained, but it should be explained alongside the legislation, not in it. Explanatory Notes have been published alongside the Bill, which make it clear that the scheme is a mechanism for enabling redress to be provided without the need to go to court. We have also published a statement of policy. Again, this makes it clear that the scheme will provide an alternative to litigation. Paragraph 14 states:
	"The NHS Redress Bill does not make any fundamental amendments to the existing legal system but augments it by providing patients with the option of an additional mechanism for obtaining redress".
	We therefore believe that the purpose of the Bill—that the redress scheme is another way of seeking redress—is fully explained.
	The problem with "explanatory text" such as that set out in the amendment is that it is not clear whether it is explanatory or has new substantive effect. Such clauses can, paradoxically, easily cause more confusion than they were intended to solve. For that reason they should be avoided. If there is no doubt or uncertainty, extra words should not be added to legislation, even when the words are intended to be helpful. The amendment would include an express reference to the right to bring civil proceedings; but that may lead to doubt about whether there is a similar right to bring civil proceedings in other contexts and under other enactments when there is no such stated right.
	Overall, as I have said, such a clause would not assist people, but cause confusion. The clause would not provide patients with any additional certainty about how redress could be sought in their particular circumstances. Redress may be sought via the redress scheme or by issuing civil proceedings. I believe that it causes confusion to suggest that redress may be sought through the NHS Litigation Authority or through a specified independent disputes resolution service.
	The NHS Litigation Authority manages claims against the NHS by administering the clinical negligence scheme for trusts; it manages claims where civil proceedings have been initiated; if there is no right to bring civil proceedings, the NHS Litigation Authority will not administer the claim. The amendment seems to suggest that redress via the NHS Litigation Authority or via a dispute resolution service are two alternative routes for seeking redress, even though those routes depend on the right to bring civil proceedings. There are a number of other such reasons why we think the amendment causes confusion. I am very happy to set those out in more detail in writing to noble Lords rather than detain the House further.
	I am not clear, for example, whether the amendment is intended to create a new specified disputes resolution procedure independent of the health service in England and Wales. It could be interpreted in that way. Setting up a new independent specified dispute resolution service would require wide consultation; it again raises questions in terms of costs and administration, none of which has been addressed. The inclusion of this allegedly explanatory clause at the beginning of the Bill would therefore add complication and confusion.
	I suggest that we do not proceed with this proposed new clause. We will have our debate about investigation and independent investigation later, but in the mean time I have to say that we consider the amendment highly inappropriate.

Baroness Barker: My Lords, I welcome the supportive comments of the noble Earl, Lord Howe. He rightly characterised our amendment as an attempt to put patients back into the middle of the process.
	I listened carefully to the Minister and his caution about including explanatory text in legislation. The more this Government come up with Bills that are set—almost entirely sometimes—in terms of regulatory powers, the more this side of the House will seek clearer explanations in legislation. However, I take on board what he said about some elements where there is a lack of clarity. I would very much welcome a letter from him setting out in detail his criticism of the proposed text.
	At this stage, therefore, I am happy to take the amendment away. However, I do not resile for one moment from the general point of the amendment: the fact-finding process should be independent, and a person who feels they have a case should have a number of alternative routes that are clearly set out and made known to them. We have sought to address those deficiencies in the Bill, perhaps not perfectly in this text. We will return to them in some detail on later amendments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 1 [Power to establish redress scheme]:

Lord Warner: moved Amendment No. 2:
	Page 1, line 9, after "of" insert "qualifying"

Lord Warner: My Lords, during Committee a number of noble Lords raised concerns that the scheme was incapable of adapting to the increasing diversity of NHS healthcare provision. In particular, concerns were raised that the scheme should be able to cover services falling within the grey areas between primary and secondary care, especially as the NHS moves towards greater provision of what have traditionally been secondary care services in primary care environments. Since that debate, the Government have published a White Paper addressing some of the items on the health agenda.
	I have taken on board noble Lords' concerns that the scheme should be able to adapt to increasing diversity of service provision and the move towards providing hospital services in the community setting. This group of amendments enables the scheme to list, in secondary legislation, services over and above hospital services that will be covered by the scheme. This will allow flexibility to bring those services falling in the grey areas between primary and secondary care within the scope of the scheme. It will also allow flexibility to adapt the scope of the scheme in the future, in light of changing methods of service provision and delivery.
	We consider it appropriate to set out in secondary legislation the details of which services, over and above hospital services, should be designated as qualifying services for the purposes of the scheme. The intention is that the power will be used to cover, for example, services of a kind usually provided in a hospital, which happen not to be so provided, such as pathology laboratory services. These can be provided in hospital or free-standing units. Another example would be services that are currently normally provided in a hospital, but which may in future be more frequently provided outside the hospital setting; an example would be palliative care. A third example would be those services that fall in the grey areas between primary and secondary care. This might describe, for example, ambulance services, which increasingly take on a wider role in the services they provide.
	It is appropriate that these services be set out in secondary legislation, due to the changing nature of service provision in the NHS and the potential for further services to be moved out of the hospital setting in the future, which is certainly the aspiration reflected in the White Paper. Flexibility is desired to ensure that the scope of the NHS redress scheme can be more easily adjusted in the light of changes to NHS service provision. A supplementary memorandum was submitted to the Delegated Powers and Regulatory Reform Committee on 19 January, outlining the new powers proposed in these amendments. The committee has considered the government amendments and has not identified any matters that it wishes to draw to the attention of the House. The report is available to all Members in the Printed Paper Office.
	I remain convinced that primary care should remain excluded from the scope of the scheme; that is why we object to Amendments Nos. 5 to 7. To put our objections on the record once more, it may be helpful if I deal with that now, by explaining why we did not include it in this amendment. As discussed in Committee, extending the Bill to include primary care wholesale would be problematic for a number of reasons. Primary care professionals cover their liability through private insurance arrangements, rather than NHS indemnity arrangements. Further consultation would be needed to develop a scheme that would effectively in primary care have the confidence of primary care professionals and insurers. The redress scheme has been costed only for NHS clinical work covered by the Clinical Negligence Scheme for Trusts. Following Committee, the cost of including primary care within the Bill has been modelled by departmental economists. Their modelling suggests that it would be up to an extra £56 million per year.
	Amendment No. 4 therefore provides for primary medical services, primary dental services and general ophthalmic services to be specifically excluded from the new powers in Clause 1. That avoids the problems involved in extending the scheme to cover primary care wholesale. Because "primary medical services" and "primary dental services" are not defined terms for the purposes of the National Health Service Act 1977, Amendment No. 4 provides for the possibility of prescribing in regulations particular services that are or are not primary medical services or primary dental services for the purposes of Clause 1. The intention is to ensure a consistent approach when specifying services to be covered by the scheme. Where a certain service is generally provided in a hospital, but may on occasion be provided in an alternative setting—for example, a primary care facility—it is intended that this power could be used to enable the service to be covered by the scheme regardless of where it is provided. It remains our intention that the scheme will be reviewed three years after implementation with a view to considering whether to expand its scope to cover primary care, which would require further primary legislation.
	Because "hospital" appears only in Clause 1, Amendment No. 9 takes the definition from Clause 18 and places it in Clause 1. It has no policy implications. Amendment No. 51 is a purely technical amendment, which prevents duplication of the interpretation by removing the reference to "hospital" from Clause 18. I beg to move.

Baroness Barker: My Lords, I shall speak to Amendments Nos. 5 to 7. In Grand Committee, my noble friend Lady Neuberger and I listened very carefully to what the Minister had to say on which services would or would not be covered by this legislation. I have also studied with great care the Minister's letter dated 18 January, in which he sets out in detail the arguments that he has just put on why "hospital" is not narrowly defined. However, as the Minister said, it is right that in the mean time we have had the White Paper—all 267 pages of it—which sets out how and when services will be transferred from their hospital settings into community settings.
	Noble Lords have listened to various Ministers talking about all sorts of proposals, including the suggestion that consultants be placed in GP practices and the development of practices with special interests. They may even know that there is a unit within the Department of Health which is working specifically on the transfer of NHS staff into other settings and, I believe, is attending to matters such as what happens to staff who are TUPE-ed from the NHS to other organisations.
	All that suggests the rapid transfer of services which are currently provided within general hospital settings to other places. Therefore, during the next three years, or however long it will be before this scheme is implemented and reviewed, how will people know whether the services which they have received in a primary care setting which have been adverse are within the scope of this redress scheme or not?
	Why is the scheme such a threat to primary care services? We are talking now not just about GPs, who have their own insurance schemes to which they have to subscribe. Why is it not in their interests as primary care employees and practitioners to have this scheme, the basis of which is to avoid costly and lengthy litigation? It is a phrase that we have not heard for a very long time from the Benches opposite, but the Government were once committed to joined-up government. This seems to be its very opposite. Nothing that the Minister said, either in his explanation of the government amendment or in his letter, has shed any light on which services will or will not be covered by the scheme. He talked about services which are normally provided in a hospital setting but may occasionally be transferred to a community setting. Where, for example, will podiatry services for people with diabetes be—a service which is at the moment carried out within a general hospital setting but which is very rapidly likely to be transferred to community services? Will it be covered or not? I do not think that the Minister has come up with a convincing answer yet as to why there should be such a widespread exemption.

Lord Warner: My Lords, I take that as an invitation to have another go. As I said in my letter and in my opening remarks, I acknowledged that we could not be absolutely certain precisely which and at what time services would be taken out of a normal hospital setting and made available in a community setting. A good example of this is emergency care practitioners in ambulance services. Different ambulance services at the moment have different ranges of emergency care practitioners doing different duties. The location from which forms of healthcare are delivered is changing quite rapidly, not just in this country but in all countries. In the White Paper, for example, there are six projects in particular specialties—urology is one, ENT is another—where we will look for new clinical pathways for people. We will work with the professions to gauge the safety and feasibility of taking more of the work in these specialties traditionally done in a hospital into a community setting.
	Given that we know the direction of travel, we think it sensible in this Bill to take provisions to put in secondary legislation, and to communicate to patients which services are to be covered by the scheme. I tried to explain clearly—both in Committee and today—why we did not extend this scheme to primary care. At the moment this scheme is intended to cover hospital-type care only. Primary care would be excluded from the scope of the scheme. Costing of the scheme was made on that basis. I gave in my speech the extra costing of extending this Bill to primary care, even if we could speedily do it. On the estimates available to me, they are of the order of £56 million. However, we have the complexity caused by the fact that GPs and other primary care practitioners have a totally different professional indemnity system from the NHS hospital indemnity system. We cannot simply translate that system into the terms of this Bill. To do that, it would need to be looked at again and there would need to be wide consultations with the primary care interests.
	In the mean time, we do not want to hold up the Bill until all those consultations in the primary care field have been completed. We do not know where they will take us, so in our view it is better to get on with the redress scheme being provided by the Bill, but to make it flexible enough to deal with a range of services that we know are likely to end up being provided outside the hospital setting in the coming years.

On Question, amendment agreed to.

Lord Warner: moved Amendment No. 3:
	Page 1, line 9, leave out "in a hospital (in England or elsewhere)"
	On Question, amendment agreed to.

Lord Warner: moved Amendment No. 4:
	Page 2, line 3, at end insert—
	"(4A) For the purposes of subsection (2), services are qualifying services if—
	(a) they are provided in a hospital (in England or elsewhere), or
	(b) they are of such other description (including a description involving provision outside England) as the Secretary of State may specify by regulations.
	(4B) Regulations under subsection (4A)(b) may not specify services of any of the following descriptions—
	(a) primary dental services,
	(b) primary medical services,
	(c) services provided under section 38 of the National Health Service Act 1977 (c. 49) (general ophthalmic services),
	(d) services provided under section 41 of that Act (arrangements for pharmaceutical services) or by virtue of section 41A of that Act (arrangements for additional pharmaceutical services), and
	(e) services of a kind which may be provided under section 41 of that Act, or by virtue of section 41A of that Act, which are provided under Schedule 8A to that Act (local pharmaceutical services schemes) or section 28 of the Health and Social Care Act 2001 (c. 15) (local pharmaceutical services pilot schemes).
	(4C) The references in subsection (4B) to primary dental services and primary medical services are to primary dental services and primary medical services under Part 1 of the National Health Service Act 1977 (c. 49), except that the Secretary of State may by regulations provide that services of a description specified in the regulations are not to be regarded as primary dental services or primary medical services for the purposes of that subsection.
	(4D) Regulations under subsection (4A)(b) or (4C) may, in particular, describe services by reference to the manner or circumstances in which they are provided."
	[Amendments Nos. 5 to 7, as amendments to Amendment No. 4, not moved.]
	On Question, Amendment No. 4 agreed to.

Lord Warner: moved Amendments Nos. 8 and 9:
	Page 2, line 10, leave out subsection (7).
	Page 2, line 14, at end insert—
	"( ) In this section, "hospital" has the same meaning as in the National Health Service Act 1977 (c. 49)."
	On Question, amendments agreed to.
	Clause 3 [Redress under scheme]:

Lord Warner: moved Amendment No. 10:
	Page 2, line 23, at end insert "redress ordinarily to comprise-"

Lord Warner: My Lords, concerns were raised in Committee that the Bill does not mention explicitly the making of an apology as obligatory under the scheme. In Clause 3(2), it currently provides that the scheme must provide for,
	"(a) the making of an offer of compensation in satisfaction of any right to bring civil proceedings in respect of the liability concerned, and
	(b) the giving of an explanation,
	except in specified circumstances".
	I offered to reconsider the drafting here.
	A 2002 MORI survey commissioned for Making Amends found that the main response wanted by 34 per cent of people affected by medical injury was an apology or explanation. In that light and from the points made by noble Lords in Committee, I consider it appropriate to provide in the Bill that in cases to which the scheme applies, it must provide for the giving of an apology in addition to the giving of an explanation and the making of an offer of compensation. Amendments Nos. 11 and 13 bring this into effect.
	Amendment No. 10 inserts the words "redress ordinarily to comprise" into Clause 3(2), while Amendment No. 14 removes the words "except in specified circumstances" and replaces them with,
	"but may specify circumstances in which one or more of those forms of redress is not required".
	I hope that this makes what we intend clear: that all three forms of redress will usually be required to be offered. This is the expectation. There may be exceptions, but ordinarily an apology, an explanation and compensation will be provided. I hope that this meets the previously expressed concerns of noble Lords over how often exceptions would occur.
	It is intended that the power provided by Amendment No. 14 to specify circumstances in which one or more forms of redress are not required will be used sparingly. However, there will be cases in which it may be appropriate to make use of the power. It is intended that the cases in which exceptions may be appropriate will be set out in secondary legislation on the scheme following full consultation with stakeholders. For example, there may be cases in which the patient makes it clear that they do not wish to receive financial compensation. As the noble Earl, Lord Howe, pointed out in Committee, it may be inappropriate to make offers of compensation in such circumstances. On other occasions it may be wrong to offer an explanation—for example, in cases where someone is going through the redress scheme following the death of a relative. There may be issues of clinical confidentiality about which the patient's relative is unaware and which it may be inappropriate to divulge. There are a number of these possible exceptional circumstances for which we have tried to provide and which we will specify in secondary legislation. I beg to move.

Earl Howe: My Lords, perhaps I may start by welcoming Amendment No. 13 in response to a concern raised by me and others in Grand Committee, which the noble Lord was good enough to acknowledge both at the time and in his subsequent very helpful letter. For many people who feel that they have been badly treated in hospital, what they are looking for above anything else is an explanation of what happened and an apology for the mistake. It is therefore very gratifying that the Government have felt able to agree to our suggestion that the giving of an apology should feature as an integral part of the redress process in the Bill.
	We all appreciate that an apology will not be warranted in all cases. Sometimes a grievance will be investigated and the finding will be that everything possible was done for the patient, both correctly and in a timely fashion, but that the outcome, through no one's error, was not what had been hoped for. In a case like that, an apology would be inappropriate, but the patient would still be entitled to an explanation of what had happened and why. That is why, while welcoming Amendments Nos. 10 and 13, I must voice a mild degree of concern about Amendment No. 14, although that concern has been softened somewhat by the comments that the Minister has just made.
	As I have said, there may be circumstances where an apology is not required, and where compensation is not required. But I suggest that in just about every case where proceedings have commenced and an investigation is being carried out, the patient or his representative will expect and be entitled to an explanation. The wording of Amendment No. 14 throws up the possibility of widespread exceptions to that principle. I hope that that is incorrect and that the Minister can reassure me that it is not the Government's intention to discourage the giving of an explanation in any other than very exceptional circumstances of the kind he outlined.

Lord Warner: My Lords, I am happy to give that assurance. It is certainly not our intention to do that; it would defeat the objectives of the scheme. One of those objectives is that people should learn from their mistakes, and part of that learning process is explaining to people what has gone wrong and why it happened.

On Question, amendment agreed to.

Lord Warner: moved Amendment No. 11:
	Page 2, line 25, leave out "and"
	On Question, amendment agreed to.

Earl Howe: moved Amendment No. 12:
	Page 2, line 26, at end insert "and a report on action being taken to reduce the risk of similar errors being repeated"

Earl Howe: My Lords, in moving this amendment, I return to an issue that I raised in Grand Committee—that of lessons learnt. We have already spoken about the need for an aggrieved patient to receive an explanation and, where appropriate, an apology, but there is a third thing most patients want when they seek redress: a clear sense, when the investigation is complete, that appropriate lessons have been learnt, to prevent similar mistakes from happening to other people. The Government's Amendment No. 36 is welcome. It speaks of the requirement for members of the scheme to publish an annual report about cases brought under the redress scheme and the lessons to be learnt from them.
	I am not sure that goes quite far enough, however. Receiving an annual report with cases anonymised is not quite the same thing as being presented with an action plan flowing from your own particular case, in which, let us say, the chief executive of a trust or the head of a clinical department writes you a personal letter setting out exactly what has been or is being done to improve procedures, training or whatever is necessary, in response to the facts uncovered by the investigation of your case. When genuine lessons have been taken on board by the hospital, that is what the patient will want and should have, whenever it is appropriate and relevant. I hope therefore that the Minister will not dismiss my amendment, which attempts to address a central issue for patients in such circumstances. I beg to move.

Lord Warner: My Lords, in Committee, as the noble Earl, Lord Howe, has said, a number of noble Lords raised concerns that lessons learnt under the scheme were not to be made public. The redress scheme has a number of aims, among them the desire to create a cultural shift within the NHS towards a greater willingness to learn from mistakes and to improve the quality of service offered to patients in the future. Throughout consideration of this Bill, there has been no difference between any of us regarding that purpose.
	Clause 10(2)(h) enables the scheme to impose a new duty on scheme members, to charge,
	"a specified person with responsibility for overseeing the carrying out of",
	the scheme by the scheme member and,
	"advising the member about lessons to be learnt from cases involving the member that are dealt with under the scheme".
	However, we have listened to the concerns of the noble Lords about demonstrating a more public commitment to ensuring that lessons have been learnt and acted upon. Amendment No. 36 enables the scheme to require scheme members,
	"to prepare and publish an annual report about . . . cases",
	involving the member that are dealt with under the scheme,
	"and the lessons to be learnt from them".
	The annual report is intended to demonstrate to patients within a scheme member's locality that lessons are being learnt from the redress scheme and that the scheme is being used effectively to improve local delivery of services. Guidance on best practice will set out how best to ensure patient and clinician anonymity when preparing and publishing these reports. To support the close links between the NHS complaints procedure and the redress scheme, it will be open to scheme members to combine the annual report on the redress scheme with their annual report on complaints.
	Amendment No. 37 would provide that the annual report must also include details of the nature and incorporation of the lessons learnt. I believe that the drafting of Amendment No. 36 makes it clear that the nature of the lessons learnt is to be covered. This aspect of Amendment No. 37 is unnecessary. Similarly, it is not necessary to stipulate that the report must detail how lessons learnt have been incorporated. This is implied by the duty.
	This amendment would introduce too much detail into the Bill, as it seeks to cover areas best dealt with as good practice guidance. Provision is already in place to ensure that learning from mistakes is taken forward and incorporated. The Bill already provides, at Clause 10(2)(h), for the appointment of a person with responsibility for ensuring learning from mistakes within the organisation. This person's responsibility will be to ensure that lessons learnt are incorporated and that a culture of learning is established within the organisation concerned. I support Amendment No. 36 and suggest that Amendment No. 37 be not moved.

Earl Howe: My Lords, I am not sure whether the noble Baroness, Lady Barker, wishes to speak. I expect that, with the leave of the House, that would be in order.

Baroness Barker: My Lords, I apologise. I wondered whether the Minister might deal with Amendment No. 38, which is about the need to ensure that individuals who have had cause to seek redress should be informed. From what he has said, I understand that there is an intention to make sure that general information is made available about lessons learnt. However, there is nothing to make it absolutely clear that that would get back to the individual concerned, who is perhaps the person who needs and wishes to have such information the most.

Lord Warner: My Lords, I am sorry. I got tangled up in my amendment numbers. I am grateful to the noble Earl, Lord Howe, for coming to my rescue. I apologise. I did have some more things to say. I am happy to delight the House with further and better particulars.
	The noble Baroness mentioned Amendment No. 38, which I had not thought to pre-empt until she had spoken to it. The amendment provides for the annual report to be submitted to the Healthcare Commission. It also provides that copies of the report will be made available to all who have sought redress during the period covered by the report. We suggest that this level of detail is not appropriate to be set out on the face of the Bill. Government Amendment No. 36 provides for the report to be published. It is clear that this information will be available to the public, including the Healthcare Commission and patients whose cases have been considered under the scheme. It is not for the Bill to seek to determine how best to assist the Healthcare Commission in its operations. It is appropriate for the Healthcare Commission itself to determine the types of information that it requires and subsequently to make it clear that it requires that information. That is the way it behaves in all sorts of other areas—it requests information to enable it to discharge its duties and responsibilities.
	With regard to the proposal that copies of the report be made available to each individual who has sought redress under the scheme, that is already provided for in the requirement that the report will be published and therefore will be available to the public. The method by which each scheme member publishes its report is a matter for local discretion subject to good practice guidance rather than primary legislation. We envisage, however, that guidance may advise that reports be available to all patients within a scheme member's locality to demonstrate that lessons are being learnt from the redress scheme and that the scheme is being used effectively to improve local delivery of services.
	We also do not support Amendment No. 12, which I should have spoken to earlier. This amendment is inappropriate as it would commit scheme members to providing such a report on all cases falling under the scheme. However, there will be cases where an error truly is a mistake arising from circumstances that are unlikely to occur again. In other cases, it may not be possible to identify an immediate cause or an obvious solution to prevent a similar error from occurring. In those cases, an explanation and an apology will already be offered and a report on action to be taken to reduce the risk of the error being repeated would be inappropriate and meaningless. At worst, it could exacerbate an already emotive situation. However, I accept that patients harmed during their healthcare often wish to be reassured that similar incidents are unlikely to occur again. That is why we propose Amendment No. 36, which amends Clause 10 to require scheme members to publish an annual report. Those are my reasons for not accepting the non-government amendments.

Earl Howe: My Lords, I thank the Minister for his reply. I am, of course, a little disappointed with his reaction to Amendment No. 12. It seems to me that government Amendment No. 36, although very welcome in itself, provides for a process that is a little impersonal and after the event, if I can put it that way. We all subscribe to the aspiration that there will be a culture of learning instilled into the NHS by virtue of this scheme. There is no argument between us on that. However, I thought that there was merit in the suggestion that where appropriate—I underline the words "where appropriate"—the patient himself should receive, as soon as possible after the investigation, a short personalised report indicating what action had been taken in the hospital for the benefit of future patients. While the noble Lord is right to say that that would not be applicable in every case, the Government's Amendment No. 14, which we have just debated, would allow for exceptions to be made in appropriate circumstances, so I would not have thought that the reasons that the Minister gave were necessarily all that compelling. Nevertheless, I note that he is resistant to this idea and I will not press it. However, this has been a useful debate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Warner: moved Amendments Nos. 13 and 14:
	Page 2, line 26, at end insert "and
	( ) the giving of an apology,"
	Page 2, leave out line 27 and insert "but may specify circumstances in which one or more of those forms of redress is not required."
	On Question, amendments agreed to.

Lord Boston of Faversham: My Lords, in calling Amendment No. 15, and in view of the groupings, I point out to your Lordships at this stage that if Amendment No. 16 is agreed to, I cannot call Amendment No. 17.

Earl Howe: moved Amendment No. 15:
	Page 2, line 40, leave out paragraphs (c) and (d).

Earl Howe: My Lords, in moving Amendment No. 15, I shall speak also to Amendment No. 17. The Minister has told us that the intention for the NHS redress scheme is that it should not compensate people at a lesser level than they would have been compensated at if they had pursued their remedies through civil litigation. If the Government really mean that, it is illogical for them to reserve the statutory right to set upper limits of financial compensation. The amount of compensation offered should be assessed on the basis of the actual loss, plus damage sustained, as well as pain and suffering, just as it would be in a case that was litigated. That principle applies not only to the overall amount of compensation but to any individual head of claim.
	I fully acknowledge that the scheme is intended to address those claims that fall into the lower end of the value range. The Minister, in his letter of 18 January, helpfully explained that it is in cases where the award of damages is relatively low—£20,000 or below—that legal costs are disproportionately high. I would not wish to argue that point in the slightest. The rationale for setting an upper limit is, according to the Government, that it will enable a swift response to be given to the more straightforward and lower value cases.
	My answer to that is that there is a difference between trying to set an upper ceiling on the size of claims intended to be dealt with by the scheme and the desirability of sticking rigidly to that upper ceiling if, during an investigation, it becomes apparent that the claim is worth more than the amount of the ceiling chosen. If a claim is found to be worth slightly more than £20,000 it would seem ridiculous to miss the opportunity to resolve that claim for that rather bureaucratic reason. If that were to happen, there is only one realistic option for the patient, which is to incur the expense and the additional stress of going to court. That is in no one's interests, and it argues for some flexibility to be built into the nominal upper limit.
	In his letter, the Minister expressed the view that there would not be any advantage to the NHSLA knowingly offering less compensation than would be received through the courts because, following legal advice, the offer would be rejected and renegotiated. If the offer were at or near £20,000, and the patient's legal advice was that it ought to be worth more, the patient might nevertheless be persuaded to take a pragmatic view and accept the offer, because not to do so would incur untold additional anxiety and delay. The existence of a strictly enforced upper ceiling on claims points up very graphically the trade-off at play in the scheme between ease of operation and natural justice. I would like to persuade the Minister—although I know that I will not—that in this sense as in a number of others natural justice is a regrettable casualty of this scheme and that we should therefore do all we can to minimise its loss. One way to do that, in my respectful view, would be to abandon the idea of a strict upper limit on total settlements and on individual heads of claim. At the margin, fixed financial ceilings will distort decision making and deny patients the full extent of the redress that they would otherwise have received. I beg to move.

Lord Warner: My Lords, it is intended that the redress scheme will provide for financial compensation to be offered, and Clause 3(4) sets out some of the parameters of such financial compensation. It allows the scheme to specify upper financial limits for compensation. As drafted, this may be an upper limit on the total amount of financial compensation that may be included in an offer under the scheme, or an upper limit on the amount of financial compensation that may be included in an offer in respect of a particular matter, or both of these. If no total upper limit is specified then an upper limit on compensation for pain and suffering must be specified.
	That is the starting point. It is our stated intention that financial compensation offered under the scheme will be broadly equivalent to the level of compensation that would be provided in a successful claim before a court. The noble Earl, Lord Howe, acknowledged that as one of the considerations that would be taken into account by the NHS Litigation Authority in making an offer.
	In Committee, a number of noble Lords raised concerns that patients might not receive financial payments equivalent to those they might expect from the courts. Concerns were also raised that if limits were imposed on particular elements of a claim, more people would be driven to the courts rather than encouraged to use the scheme. As I stated in Committee, it is not currently intended to use the power in Clause 3(4)(d) which allows upper limits on individual heads of damages. We do not intend to impose caps on the level of special damages that may be offered under the scheme. I said I was willing to consider removing it.
	Amendment No. 16 removes the power in Clause 3(4)(d) to specify an upper limit in respect of individual heads of damages, other than a single overall upper limit in respect of damages for pain and suffering. The effect of the amendment would be to allow the scheme to provide either for an overall upper financial limit, or an upper limit on the amount of damages for pain and suffering only.
	This amendment will prevent the scheme from providing for a double cap. It will not be possible to have an overall cap on the total amount of financial compensation and a second cap on the amount that may be offered in respect of a particular matter. The scheme will not be able to specify any other limit on what may be included in an offer of financial compensation. No caps on special damages will be possible. The intention is that the scheme will provide for offers of financial compensation to be broadly equivalent to the level of compensation that would be provided in a successful claim before a court.
	I remain aware of noble Lords' concerns over the appropriateness of setting an upper financial limit for claims under the redress scheme. I understand the arguments that the noble Earl, Lord Howe, has offered on Amendments Nos. 15 and 17, which would remove the power for the scheme to set any upper financial limit. I was very pleased that his expectations of my response were extremely low. I do not wish to disappoint him. However, we believe it is vital to the successful operation of the scheme that such a limit is set. Concentrating on the lower-value claims will do the most to reduce disproportionate legal costs.
	I remind noble Lords that we arrived at the figure of £20,000 as the upper limit on the amount of financial compensation that may be included in an offer under the scheme after examining existing legal claims. The number of low-value cases settled by the NHS Litigation Authority in 2002–03 and 2003–04 was 4,090 and 5,690 cases respectively. That shows that legal costs in those cases were disproportionately high for cases where the level of settlement was up to £20,000. Cases settled where the award of damages was above £20,000 show a significant reduction in the proportion of legal costs to damages. That is why we settled on the £20,000 limit.
	Setting an upper limit supports the scheme's aim of offering a swift response to the more straightforward and therefore lower-value cases and allows scheme resources to be focused on cases where such an approach would be of most benefit to patients. It is felt that complex cases should continue to be dealt with outside the scheme. As I have stated, it is intended that offers made under the scheme will be broadly equivalent to an offer made under a successful claim before a court. Where a case is felt to fall just above the £20,000 threshold, it may be appropriate for that case to be referred to the Clinical Negligence Scheme for Trusts, and resolved outside the scheme.
	We have undertaken to review the working of the scheme after three years, with a view to considering whether it would be appropriate to order the limit, or apply a limit on the pain and suffering element only. We have not ruled out change, but we must start somewhere. It is most appropriate to start with the ceiling of £20,000. Because provision is made to settle that limit in secondary legislation, it will be easy to adjust that limit without coming back to Parliament for amendment to primary legislation. That is why we disagree with the noble Earl, Lord Howe, although I acknowledge the eloquence with which he advocated his case.

Earl Howe: My Lords, the Minister is very kind and I thank him for his reply. I should make clear that I have no quarrel with the concept of what one might call an indicative limit. We all agree that the lower value cases should fall within the ambit of this scheme. But the existence of a strictly enforced ceiling will prove a barrier to access to justice for many people. You can easily imagine that, at the start of an investigation, the NHSLA and indeed the patient will believe that the claim falls squarely within the financial ceiling laid down. As the investigation proceeds, however, it may become apparent that the claim is in fact worth rather more than £20,000. If it is going to be worth only a little bit more than £20,000, then it would seem perverse to abandon the process altogether when, without much extra work, an offer could quite easily be made.
	I note what the Minister said about the clinical negligence scheme for trusts. That may prove a satisfactory safety valve for the type of cases that I have outlined. In the end, however, we come down to the "suck it and see" approach that the noble Lord outlined towards the end of his reply. It remains to be seen how this scheme will operate in practice. I have indicated that a bit of flexibility at the outset would not be amiss, but the Government have resisted that view. I can do no more than to sound a warning and, like the Minister, hope that I am wrong. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Warner: moved Amendment No. 16:
	Page 2, line 40, leave out from beginning to end of line 3 on page 3 and insert—
	"(5) A scheme that provides for financial compensation to be offered—
	(a) may specify an upper limit on the amount of financial compensation that may be included in an offer under the scheme;
	(b) if it does not specify a limit under paragraph (a), must specify an upper limit on the amount of financial compensation that may be included in such an offer in respect of pain and suffering;
	(c) may not specify any other limit on what may be included in such an offer by way of financial compensation."
	On Question, amendment agreed to.
	[Amendment No. 17 not moved.]
	Clause 4 [Commencement of proceedings under scheme]:

Baroness Barker: moved Amendment No. 18:
	Page 3, line 17, at end insert—
	"( ) The only relevant circumstance in which proceedings cannot be commenced is when an injury has been sustained and where an offer under the scheme in respect of the same injury has previously been rejected."

Baroness Barker: My Lords, in this group of amendments—and, indeed, the next—we return to issues on which my noble friends Lady Neuberger and Lady Tonge and I probed the Government in Grand Committee. They all seek clarity about who may commence proceedings under the scheme, and how that might be done.
	I return to these matters because, while the Minister set out his response in a letter with some clarity, he has not sought to make the Bill itself any clearer. Most of the people who, unfortunately for them, have to commence proceedings will not see the Minister's letter, but they will see the Bill. I am a great believer in having information in the right place, so that it is easily accessible.
	Amendment No. 18 seeks to make clear that this is not an unending process, and that it should be known that redress can be only a one-time act—it is not something to which they can return on the same matter.
	Amendment No. 20 makes provision for commencement of a scheme by a member if asked to do so by an individual. In his letter of 20 December 2005 to me and the noble Earl, Lord Howe, the Minister said:
	"I would like to take this opportunity to reassure you that it is fully intended that individuals will be able to apply to the scheme directly and thus initiate proceedings under the scheme".
	I would like to take the opportunity to invite the Minister to make that clear in the Bill, where his intentions will be paid a great deal more heed. In doing so, it would not—as the Minister goes on to suggest in his letter—give the impression that it is only an application-based scheme. That was one of his reasons for not doing so before.
	The amendments that we discussed previously about openness and the need for reporting in no way undermined what the Minister spoke about at great length, with which we agree. That is that the measure should bring about a change of culture within the NHS. It should be something that NHS staff and organisations feel free to initiate for the benefit of patients. I do not believe that stating in the Bill that an individual may trigger the scheme in any way undermines that.
	Finally, Amendment No. 21 seeks to deal with an issue that has been raised again by the Law Society. In his letter to me and the noble Earl, Lord Howe, the noble Lord said that he did not wish to have such a provision because he thought that limiting the power to bring proceedings under the scheme to the individual who had been harmed would be too narrowing. I understand why he wishes to do that, but this amendment is here to seek from the Government a response to a slightly different but related matter, which is how it would be possible to prevent an individual, who is not the individual who has directly been harmed, from deciding that a case should go through the redress scheme—rather than by any of the other avenues that may be open, such as litigation—and thereby making the individual take an easy and quick route that may not be most beneficial to them. That is the loophole that the amendment is seeking to probe. In the Minister's full letter to us he did not address that matter, which is why I tabled the amendment. I beg to move.

Lord Warner: My Lords, I listened carefully to the noble Baroness's advocacy of the three amendments. I am afraid that we oppose Amendment No. 18 on the grounds that it may be appropriate to provide for other circumstances in which proceedings under the scheme may not be commenced. The amendment would remove any flexibility. The only circumstances in which proceedings could not be commenced would be where an offer had previously been rejected. There may be other circumstances in which it may be appropriate that proceedings may not be commenced; for example, when it is obvious from the outset that a case would fall well over the financial limit for compensation under the scheme. Another example might be where an offer under the scheme in respect of the same injury had already been accepted.
	We intend to consult stakeholders further when drawing up the secondary legislation, and we will consult about the circumstances in which proceedings may not be commenced. We would wish to retain flexibility to make appropriate provision for other such circumstances following those discussions. When the scheme is first established, the regulation and scheme will be subject to affirmative resolution procedure and there will be an opportunity for full parliamentary scrutiny of the use of the power.
	Amendment No. 20, in contrast, seeks to place a provision in the Bill that proceedings must be commenced where the patient wishes to seek redress under the scheme. The Bill has powers which will enable the scheme to specify who can commence proceedings. It is our firm intention that individuals will be able to apply to the scheme directly. The details of who may make applications will be covered in the scheme itself, so will be part of the secondary legislation on which we shall again consult stakeholders.
	However, we intend that patients will be able to apply directly to the scheme. Where an application is made, it is intended that the scheme will require the relevant scheme member to investigate and to send the case to the scheme authority for a decision on eligibility. Where a case is eligible under the scheme, the scheme member will then make an appropriate offer of redress, but it will be appropriate only where the case falls within the scheme. There may be a small number of cases in which it may be appropriate for proceedings not to be commenced. For example, where it is clear, again at the outset, that the case would far exceed the financial limit of the scheme, it may be appropriate for the case to be referred directly to the clinical negligence scheme for trusts to avoid delay.
	The noble Baroness raised points on Amendment No. 21. In our opinion, this amendment overlooks an important aim of the scheme. Scheme members should identify cases that potentially fall within the scheme and activate the scheme without waiting for the patient to approach them. It is intended that the scheme will bring about an active approach with scheme members taking steps to identify qualifying cases. However, Clause 4(2)(f) has powers to enable the scheme to provide for the notification of the commencement of proceedings. It is intended that, if the scheme is activated by a scheme member rather than by a patient, the scheme will provide that the scheme member should notify the patient that proceedings have been commenced. Patients in those circumstances would not be kept in the dark.
	If the patient does not want his case to proceed, the powers in Clause 6(2)(f) enable the scheme to make provision about the termination of the proceedings. If the patient stated that he did not want his case to proceed, we intend that the scheme member will be required to terminate the proceedings.
	The answer to the noble Baroness's question is that the issue will be covered in secondary legislation. Those are our grounds for objecting to these amendments.

Baroness Barker: My Lords, I thank the Minister for the clarity he has added, which is now on the record. I did not find all his answers compelling and I do not believe that there is yet sufficient clarity about the power of individuals to trigger this scheme.
	I take entirely his optimistic view that scheme members, principally trusts, will be only too ready and willing actively to trigger things on behalf of people whom they feel come within it. What if they do not? That is the still-unanswered question. What is the power of an individual and how will he know that he has the power to trigger this scheme? I did not find the Minister's answer that there may be other circumstances, or indeed that there may be circumstances when it was not appropriate to commence this scheme, compelling for not setting out the simple fact that this scheme is available for individuals to trigger. When this comes to work in practice, just like in complaints procedures now, there has to be an understanding of where it fits within the range of different ways of addressing the question of redress.
	I welcome what light the Minister has shed on the matter, but suggest that there is more yet to come. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Barker: moved Amendment No. 19:
	Page 3, line 17, at end insert—
	"( ) There shall be a duty upon scheme members to inform a patient when a mistake has been made."

Baroness Barker: My Lords, this amendment is on a similar thing, and the Minister touched on the duty of scheme members to inform a patient when a mistake has been made. I note what he said about the provisions that already exist within this clause on the notification of commencement proceedings under the scheme. That is slightly different from what is being asked for in the amendment—that there be a duty on scheme members to inform a patient when a mistake has been made.
	Here we return to the main part of Making Amends which has not made it into this Bill, namely the duty of candour, which the Chief Medical Officer said should form any part of a redress scheme. We talked about that at considerable length in Committee. We on these Benches have not yet been convinced by the Government on it. The proposals put forward in the clause do not necessarily add up to what we are asking for. Quite simply, an individual should be informed when a mistake has been made, whether or not the redress scheme is activated. If the Minister goes by the answers that he gave to the previous group of amendments, there can be all sorts of reasons why somebody would not be told—for example, the adverse incident that had happened to them was not considered to be eligible within the terms of the redress scheme. They would not be informed of the mistake. For those reasons, I beg to move.

Lord Warner: My Lords, the noble Baroness will not be surprised to discover that we do not support this amendment. We think it unnecessary in the light of the existing powers that we have taken in Clauses 4 and 5. I set out many of the reasons in previous areas, and will not detain the House much longer on this issue. I am happy to set out the arguments again for her in writing, in the hope that it will reassure her.
	We discussed the duty of candour in Committee, and the noble Baroness has drawn our attention to it again. Just to remind the House, both the GMC and the Nursing and Midwifery Council are independent, self-regulatory bodies and, after consultation with key stakeholders, it was not considered appropriate for the Government to require either body strictly to enforce an additional duty of candour. We did not lightly cast aside the proposals in Making Amends. We consulted very carefully on that issue and what I have just described is the outcome of those consultations.

Baroness Barker: My Lords, I thank the Minister for that response. However, having listened carefully to him, I think his response still points up a somewhat odd omission from the whole scheme. He talked to us at considerable length about new openness within the NHS—a willingness to listen and to learn from mistakes. However, the duty of candour has not been taken on—I noted what the Minister said. Not to include a simple duty to inform a patient that mistakes have been made seems to me a fundamental missing link in the proposals. I will take the matter away and consider it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 20 and 21 not moved.]
	Clause 6 [Proceedings under scheme]:

Earl Howe: moved Amendment No. 22:
	Page 3, line 33, at end insert "(such investigation to be confined to investigation of the facts of cases and not to consider issues of liability in tort)"

Earl Howe: My Lords, I shall speak also to the other amendments in this group. The aim of the Bill is to provide us with a model for a system that will enable aggrieved patients to seek redress—in all senses of that word—if they feel they have received negligent treatment in an NHS hospital. If there is one glaring fault in that model, to my mind, it is this. Let us imagine that a patient has been treated in hospital and something has gone wrong with the treatment. He makes an application under the scheme. The body tasked with investigating the facts of what went wrong is the hospital itself. The scheme authority, tasked with overseeing the process of investigation, assessing the degree of fault and setting the quantum of compensation, is the NHS Litigation Authority—a body very experienced in that area of work, but one which, when all is said and done, is part of the NHS.
	The NHS is therefore being asked to act as judge, jury and assessor of compensation for its own misdeeds. Is that a system that is inherently fair to the patient? I do not think so. Is it a system in which patients are likely to have confidence? I suggest not. From the patient's point of view, the redress scheme may offer a cheap and speedy means of settlement, but it is hardly objective or independent. We must address that failing.
	Putting myself into the shoes of an aggrieved patient, I would want one thing above all—some assurance that the initial process of fact-finding by the hospital was not a purely in-house exercise. There needs to be some independent oversight of the investigation by someone both sufficiently knowledgeable and with the necessary degree of standing in the eyes of the public.
	In Grand Committee, it was suggested that the Healthcare Commission, not the NHSLA, should act as the scheme authority and, in so doing, provide the required element of independence. The Minister told us that there were two things wrong with that idea. One was that the Healthcare Commission has a conflict of interests, bearing in mind its current role as the point of reference for second-tier complaints in the NHS. The other was that it would damage local accountability. In his subsequent letter, for which I thank him, he added that it would also prove an inexpensive way forward. I am not sure that I fully accept the first two reasons but, in fairness to the Minister, it would be wrong not to take on board the third one.
	Since Grand Committee, I have given this issue a lot of thought. It seems to me that there is a solution which would meet the requirements that I have set out without falling foul of the Minister's objections in relation to the Healthcare Commission—a panel of patient redress investigators approved, but not appointed, by the Healthcare Commission, whose job would be to oversee the fact-finding part of the redress process.
	It is perfectly possible to imagine one individual serving several hospital trusts in this capacity. There would be no need for there to be one per trust. The trusts concerned would be responsible for investigating the facts of what went wrong, but the person actually signing off the report would be the redress investigator—a person who, albeit paid by the trust, would nevertheless not be seen as part of either the medical staff or the trust management. The Healthcare Commission's prior approval, or kite marking, of that person would confer a special independent status on him or her.
	There is a model for what I propose, and it is a familiar one—that of the coroner. The coroner is a Crown servant whose job is to investigate the facts of a death whose circumstances are not straightforward. If the death takes place in a hospital, the hospital will collate the factual details of what went wrong, but it is up to the coroner to arrive at a verdict of how, when and where the deceased came by his death. He does not and must not pronounce on any issue relating to fault or legal liability. He cannot grant remedies or reward damages.
	By means of a process that is inquisitorial, the coroner inquires into the facts of what happened, hears the evidence, summarises that evidence, and finally arrives at a verdict which comprises a finding of fact about the circumstances of the death. Where he believes that action should be taken to prevent the recurrence of similar fatalities, he may report accordingly.
	There is a key feature of the coroner's inquest, which I have just emphasised—the separation of fact-finding from fault-finding. In Grand Committee, I proposed that the Bill omit any reference whatever to fault-finding and stick solely to the key process of fact-finding. I still believe that that would be the best model to follow. It is not necessary or appropriate for the Bill to do more. However, I am realistic enough to know that I am not going to achieve that outcome so, failing that, the key must be to ensure that the fact-finding part of the redress scheme is not muddied by the separate process of determining fault and assessing a quantum of compensation—the role that the Government want the NHSLA to undertake.
	That is why I propose in the amendments that the NHSLA should have no jurisdiction over the fact-finding part of the redress scheme. It should stand back. The jurisdiction should instead lie with the patient redress investigator. At the end of the factual investigation, the patient would receive from the hospital and the investigator an explanation of what went wrong and, where appropriate, an apology. After that, so long as the patient wishes it, but not of course otherwise, the NHSLA would take over as the scheme authority. It would determine liability, if any, and make an offer of financial compensation to the patient. The patient could then take that offer or leave it as he chose.
	I genuinely believe that this variant of the government scheme will give us a better result. The main thing it will achieve is the necessary element of independence and thus consumer confidence. But there are, I suggest, other benefits. It avoids what in Grand Committee I rather rudely called the functional incoherence of the Government scheme. The model provided by the coroner's court tells us that you need an impartial investigation of the facts before you even begin to decide whether there is a legal case to answer. Therefore, you should not have, overseeing a fact-finding investigation where full disclosure should apply, a body whose job is also to perform the in-house role of assessing fault and offering compensation under the rules of legal privilege. You should not have overseeing fact-finding a body that would suffer from the clearest possible conflict of interests as both a part of the internal machinery of the NHS and an authority supposedly tasked with being fair and impartial to patients.
	One of the main aims of the NHSLA at present is to defend the NHS against unwarranted claims and to minimise costs that otherwise could be devoted to patient care. It does that with considerable success. It is, I am afraid, beyond me how we are supposed to believe that it can continue to perform that function in a manner that is at the same time independent. I believe that the alternative model that I have outlined overcomes all those difficulties. I beg to move.

Baroness Barker: My Lords, I shall speak principally to Amendment No. 42 in this group. As I said earlier, in the long period since Committee, the noble Earl, Lord Howe, the noble Baroness, Lady Neuberger, and I had the welcome opportunity to talk to a number of the organisations involved in such work and potentially involved in a new form of redress scheme. It is no secret that we met them; we had very useful meetings. Over that period, a number of different people, including the noble Earl, Lord Howe, and I, coming from the slightly different positions that we set out in Grand Committee, brought points of principle into our discussions with those responsible for making these and similar schemes work.
	The proposal contains an admirable blend of principle and pragmatism. We have attempted, first, as the noble Earl, Lord Howe, said, to introduce independence to the fact-finding process, which is the first stage of the two-stage process that the noble Baroness, Lady Neuberger, talked about in Grand Committee. Secondly, we have taken into account the very strong case made by the Minister in Grand Committee that a new organisation should not be created to run the redress scheme. It would be expensive and would remove from scheme members their responsibility in part for the scheme and their responsibility to develop a learning culture. We are not talking about setting up a separate organisation.
	We have also taken into account the pleas of my noble friend Lady Tonge, who, from her many years of sterling work in the NHS, was resolutely opposed to anything that could be seen as the basis for building an entire new NHS department—as is the NHS's wont. The noble Earl, Lord Howe, has set out the ways in which we see the people involved being approved by the Healthcare Commission. We see their work as being monitored to ensure that it meets certain standards. That falls clearly within the remit of the Healthcare Commission as it stands; it would not be sucked into individual cases at a local level. Our proposal is a way of guaranteeing—and constantly monitoring—a service of suitable quality and sufficient independence to guarantee the integrity of the process for the NHS and patients themselves.
	Perhaps the most compelling part of the proposal is that findings of fact would have an integrity that is crucial to the secondary process, not of assessing liability, but of making clear the lessons that must be learnt, and by whom. It is therefore the most important aspect of what we are discussing.

Lord Warner: My Lords, in this set of amendments we come to what is probably the major remaining area of contention between us in this Bill. I continue to have some sympathy, believe it or not, with some of the arguments put forward from the Benches opposite. I am particularly glad to learn of the Liberal Democrats' wish to join us in our conversion to avoiding unnecessary bureaucracy in the NHS; we are making progress. I would like to set out some of our objections to this particular set of amendments, although, if noble Lords will bear with me, I may have some comfort to offer towards the end of my remarks.
	First, there is the question of whether the scheme should be limited, at the beginning, to a fact-finding investigation. The noble Earl, Lord Howe, has plugged away at this with great persistence from the beginning. We consider it an integral and important part of the scheme that the investigation of an incident is combined, where appropriate, with the resolution of the case through an offer of redress. We do not really accept the kind of division that the noble Earl has in mind. Under the Bill as it stands, the scheme presents an alternative to civil proceedings for those claims that fall within it. The NHS redress scheme is intended to provide a mechanism for swift resolution of low monetary value claims in tort, without the need to go to court.
	Limiting the scheme, in the way proposed, to a fact-finding investigation at the outset, with some degree of separation from the rest of the scheme, would prevent the scheme from offering a real alternative to court action. It would create a partial scheme, rather than a complete scheme. This is not what patients want, as it would not allow for the provision of true redress in all cases. Of course redress involves investigation and explanation—we do not disagree with that—but in some cases it also necessarily involves financial compensation. As we have envisaged the scheme, it delivers clear benefits for patients, providing a real alternative to litigation in cases of low monetary value that fall within it. It addresses some of the problems of delay and risk around legal costs, which can arise in taking a case through the courts. That is where we start from—a different position from that of the noble Earl, Lord Howe, although I respect the arguments that he has put forward.
	I turn now, more particularly, to Amendment No. 42. This appears to envisage the appointment of a single patient redress investigator to conduct an investigation in a case under the scheme. There are a number of reasons why this would not be appropriate. A single investigator for each case would have to perform multiple and, it could be said, conflicting roles. A person suitably skilled in investigation techniques does not necessarily possess the skills to determine how to prevent errors from occurring in the future. This approach could prevent the effective use of a mix of skills within a scheme member's organisation. It might, for example, be more appropriate for certain aspects of the investigation, such as determining the clinical facts, to be handled by clinicians, with some aspects, such as patient liaison, to be handled by PALS staff and other aspects to be determined by specialists, such as jointly instructed medical experts. I give those as examples of the kinds of skills that may be necessary to get to the bottom of a particular incident.
	Scheme members, through a combination of staff working, for example, in the areas of complaints, PALS and risk management, may already possess a group of staff with combined experience in all those areas. Importantly, these staff are an integral part of the organisation and are therefore better able to link these processes together and to contribute to the learning process for that organisation, which we all agree, I think, is important for the benefit of the NHS.
	To be cost-effective, it is important that the investigation of cases under the scheme makes full use of the skills and expertise already in place on the ground. Departmental economists have estimated that independent investigation of all cases may cost as much as an extra £41 million per year. I am very happy to supply noble Lords with the basis of that calculation, because I would expect a degree of scepticism about my producing that figure from the top of my head. It would be preferable, and more cost- effective, for an appointed person to take an overview of the investigation, utilising expertise and resources already available within the organisation. With this more flexible approach, the investigator could co-ordinate different elements of the investigation undertaken by a range of people, rather than the scheme member having to employ one person, and a separate person, with all the necessary skills.
	We are also opposed to Amendment No. 42 because we do not believe that it would be appropriate for the Healthcare Commission to maintain and publish a list of approved investigators and to have responsibility for overseeing the carrying out of their functions. We have consulted the Healthcare Commission on this potential role. It does not believe that the validation and accreditation of NHS investigators falls within its remit. It is already proposed that consideration of the effectiveness of the operation of the NHS redress scheme, including investigations carried out under the scheme, will be included as part of the Healthcare Commission's annual review of the provision of healthcare by and for NHS bodies. I do not believe that a separate review of the carrying out of the functions of a redress scheme investigator would be appropriate, as it would lead to duplication of effort by a body which already has a wide range of functions and a heavy workload.
	Crucially, Amendment No. 42 raises significant unanswered questions about how the proposal would work in practice. It is not clear from the amendment by whom the patient redress investigator would be appointed, by whom he would be employed, or to whom he would be accountable. Is it envisaged, for example, that the scheme member will employ the investigator and pay his salary, but that the employee will be answerable to the Healthcare Commission? The wording could be interpreted in that way. Usual employment practice is for an employee to be accountable to his employer. Or is the intention that the investigators are independent of the scheme member? Are the investigators to be appointed by the Secretary of State? I suspect that that is not in the noble Earl's mind. As I have said, if the investigators are intended to be independent of the scheme member, there are clear cost implications. I repeat: the cost of independent investigation of all cases under the scheme has been modelled by Department of Health economists, who estimate it to be up to an extra £41 million per year.
	We further believe that Amendment No. 42 is inappropriate because it duplicates powers already established in the Bill. The amendment sets out that secondary legislation may make provision with regard to how the investigation should be carried out. But we already have the power in Clause 6(2)(a) to enable the scheme to make provision about the investigation of cases under the scheme. It is intended that the scheme will provide as to how investigations are to be carried out in secondary legislation, following consultation with stakeholders.
	That is the bad news. I shall now turn to more positive responses to what I think is the underlying thinking behind this group of amendments. We sympathise with the idea that there should be a specified person overseeing—I use the word "overseeing" deliberately—the investigation of each case under the scheme. That person should have responsibility for co-ordinating an investigation report to be submitted to the scheme authority, which may inform the decision on eligibility for the scheme. I am therefore willing to take this away and table an amendment at Third Reading to enable the Secretary of State to require scheme members to charge a specified person with responsibility for overseeing the investigation of cases under the scheme. The amendment would provide that secondary legislation may set out the prescribed qualifications and/or experience that this specified person would need.
	This person would be given the task of overseeing the carrying out of investigations under the scheme, ensuring that appropriate information is collected and provided to the scheme authority, in order to inform the decision on both liability and quantum. The person would be employed by the scheme member and the responsibilities might be conferred on an already existing member of staff. The person would have to act reasonably when carrying out their responsibilities, or a complaint of maladministration could be made under the redress scheme complaints procedure. Should complaints of maladministration be referred to the Health Service Commissioner, there would be an independent overview by the commissioner. The Health Service Commissioner could investigate complaints about maladministration in connection with the investigation of cases under the scheme, and report on her findings.
	To promote learning from mistakes and to ensure that effective links between cases under the scheme and improvements to clinical governance procedures are made, I believe that it would be preferable to take this amendment forward, building on the requirements set out in clause 10(2)(h). Clause 10(2)(h) already allows the scheme to impose a duty on scheme members, requiring them to charge a specified person with responsibility for overseeing the carrying out of specified functions under the Act and advising the member about lessons to be learnt from cases that are dealt with under the scheme. I suggest that this person will be better placed to undertake the function of overseeing investigations under the scheme, as it is envisaged that the person will be part of the management team of the scheme member.
	By combining the functions, this person will be better able to make links between cases under the scheme, learning from mistakes and ensuring that action is taken to prevent recurrence. They will understand the scheme member's procedures and be better placed to determine the appropriate action to be taken and how to monitor it. It is important that they should have the status and influence to ensure that action is taken in the future, which is one of the key aspects of the scheme and of what patients who have suffered adverse incidents want for the future.
	Furthermore, if scheme members are required to charge a specified person with responsibility for overseeing the carrying out of investigations, the role of that person will be subject to an independent overview by the Health Service Commissioner should a complaint of maladministration be referred to her. I believe that this will provide a sufficient check on the performance of the role and provide a good deal of reassurance to noble Lords, given the concerns that they have expressed. I hope that willingness to take forward an amendment on those lines will be convincing to the Benches opposite.

Baroness Barker: My Lords, I have listened with great care to the Minister but, as he may have anticipated, he has not managed to convince me. The amendment is in the name of the noble Earl, Lord Howe, and he will decide what to do. I have to say that, from these Benches, what he outlined seems insufficiently independent of the organisations under investigation and would not, in the way that he described it, be subject to sufficient scrutiny by the Healthcare Commission. I believe that the proposal put forward by these Benches is much more appropriate. The noble Lord has outlined a souped-up complaints officer, but in my view that is insufficient for the purposes of the scheme.

Earl Howe: My Lords, I am grateful to the Minister for his reply. Perhaps I may preface my remarks by saying that there is an error in Amendment No. 42. It should refer to the Commission for Healthcare Audit and Inspection; the name has not been printed correctly.
	I recognise that the Minister has made a good deal of effort to move at least in part in my direction and I thank him for the obvious thought that he has devoted to these issues. However, he is right to say that we start from different positions. His scepticism about the role of patient redress investigators was overdone. He expressed the view that the investigators would not have the necessary skill mix to do their job properly. All I can say is that—to take the well tried model of the coroner—no one would argue that coroners do not have the necessary skill mix to do their job, and very much the same kind of skills are required for patient redress investigators.
	The Minister's proposed solution, which I have listened to very carefully, suffers from one principal shortcoming. The question I ask myself is this: how could a member of staff from within the trust command the necessary degree of confidence with the public? He simply will not have the element of independence I referred to earlier. The Minister's offer builds upon the provisions of Clause 10(2)(h), as he said, but because it does so and because the individual concerned would be part of the management team, we are not looking at a sufficiently radical solution to the difficulty here.
	There is a major matter of principle. It is that there should be independence in the process and a separation of functions. There is very considerable judicial authority for the need to separate fact-finding from fault-finding. During the Recess, I had the pleasure of reading a number of transcripts of recent judgments in the Court of Appeal which underline this principle time and again. It is a key principle of international jurisprudence.

Lord Warner: My Lords, I hesitate to do this, but I think that I know where this is going. I would like to be sure that the Benches opposite accept that, if they press the amendment, they will add costs of £41 million to this Bill.

Earl Howe: My Lords, I had hoped the Minister would not say that, because I do not accept it. For the life of me I cannot imagine how the appointment of a number of patient redress investigators could conceivably cost £41 million a year. In my view, a sum of a very much lower order would be involved. I suspect that the modelling carried out by the department related to the original proposal put forward by a number of noble Lords, which suggested that, over and above the investigative process undertaken by the hospital trust, there should be another layer of investigators. That, the Minister was right to say, would have created considerable bureaucratic cost. But I do not envisage that this fairly small band of investigators will be expensive to the health service, certainly not to that order of money.
	As I have said, we are looking at a major matter of principle here. I take my steer from the Liberal Democrat Benches as well in proposing that we test the opinion of the House on this.

On Question, Whether the said amendment (No. 22) shall be agreed to?
	Their Lordships divided: Contents, 126; Not-Contents, 125.

Resolved in the affirmative, and amendment agreed to accordingly.

Earl Howe: moved Amendment No. 23:
	Page 3, line 34, at end insert—
	"( ) about the assessment of liability in tort under the scheme;"
	On Question, amendment agreed to.

Baroness Barker: moved Amendment No. 24:
	Page 3, line 40, at end insert—
	"( ) requiring proceedings under the scheme to be conducted within a fixed period of time"

Baroness Barker: My Lords, speaking as a Liberal Democrat I consider the Division result a landslide. We are clearly on our way and the Minister must be duly terrified.
	In Grand Committee we discussed at considerable length what was meant by the scheme being a speedy and efficient means of enabling somebody who has had an adverse incident with the NHS to achieve redress. The Minister has set out in his full and helpful letters more of the Government's thinking on the matter. However, the amendment has been tabled because one matter is still outstanding. Unless there are specified time limits under the scheme there could be a tendency for matters to drift. From our discussions in Grand Committee it is clear that none of us wishes that to happen. We wish this to be a speedy and yet satisfactory process for patients and for the trusts themselves. In Grand Committee the Minister commented that that could be achieved by acknowledging the importance of each stage of the process under the scheme being governed by time limits. He explained that provision was made for that in Clause 4(2)(c). He added that, should it become apparent after consultation with stakeholders that an overall time limit for the conclusion of proceedings under the scheme would be appropriate, the general power set out in Clause 6(1) would be sufficient to allow the Government to introduce such a time limit.
	However, Clause 4(2)(c) as drafted does not provide for time limits for proceedings to be concluded although it specifies that the scheme may make provision for time limits to be commenced. That implies that a specific period of time may be stipulated for people who wish to avail themselves of the scheme to start proceedings, and that failure to do so within that time may mean that they lose the right to do so. However, the Bill does not make clear that there should be a requirement for proceedings under the scheme to be not only commenced within a given time but also concluded within a time limit. If the scheme is to operate in such a way, there is a good case for making that clear in the Bill. I beg to move.

Lord Warner: My Lords, Amendment No. 24 provides that the scheme may make provision to require proceedings,
	"to be conducted within a fixed period of time".
	We have made clear that the redress scheme is intended to help to resolve cases swiftly and to ensure that redress is provided to the patient as quickly as possible. We agree on that.
	Experience from the NHS complaints procedure tells us that setting a rigid time limit for responding to complainants may have perverse incentives. In some cases, a case that might be more quickly resolved is not resolved until the time limit, while other cases are poorly dealt with within the time limit when a little more time may have provided a more satisfactory outcome. There may be cases that, for good reason, take longer to deal with; and it is more important to get the decision right than to meet a target. In many of those cases, the patient will understand if he is involved in the discussions and kept apprised of the situation.
	The major problem with introducing an overall time limit for a procedure that may, in some cases, be quite complex is that it is in danger of becoming meaningless. For simple cases, it will be unchallenging; while for complex cases it runs the risk that cases will not be properly dealt with simply to meet an overall time limit. To be effective, any time limit should have regard to the time taken by the scheme member and scheme authority to resolve the case. This amendment will not measure that effectively. Under our proposals, it is intended that patients will be given a reasonable amount of time in which to consider an offer of financial compensation. That will enable them to obtain legal advice on the offer and settlement. But an overall time limit will not take into account the time taken by the scheme member and the scheme authority as against the time taken by the patient. In other words, a case that, overall, appears to have been dealt with more quickly than a similar case may, in practice, have taken longer when one considers only the involvement of the scheme member and/or the scheme authority. We would certainly not want patients to be put under any undue pressure simply to enable proceedings to be completed within a fixed period of time.
	However, I accept that an important aim of the scheme is to facilitate the resolution of cases in a swift manner, ensuring that redress is provided to the patient as quickly as possible. Therefore, it is more appropriate for there to be time limits for some of the stages within the overall process. Those limits should be set only after full consultation with stakeholders, to ensure that practical, appropriate and effective limits are set throughout. There may even be a case for providing an exemption for cases meeting certain criteria relating, for example, to complexity. Those will be set out in the scheme. I appreciate that the amendment seeks to ensure that cases under the scheme are dealt with quickly. However, a single, overall time limit for proceedings under the scheme may unnecessarily constrain the system in a manner that is not to the advantage of the patient.

Baroness Barker: My Lords, I thank the Minister for that reply. The amendment does not bear on one party rather than the other. Having a time limit would be a good stimulus for both sides to resolve the matter quickly and not to indulge in game playing and delaying. The Healthcare Commission will evaluate that when it reviews the operation of individual NHS organisations. If that is found to be the case, there is a case for making it open from the start. However, I have listened to what the Minister said. I hope that when the guidance on good practice on the scheme comes out the Government will, for example, look at the average length of time taken by the NHS Litigation Authority to resolve cases at present and come up with some guidelines both for individuals and for trusts—that would be advantageous. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Barker: moved Amendment No. 25:
	Page 3, line 40, at end insert "; and
	( ) the disclosure of all information and evidence, including all medical evidence, obtained during the investigation into any incident or relied upon in making a decision as to whether or not an offer of settlement is to be made (or both),"

Baroness Barker: My Lords, we return again to the issue of candour, which remains a matter of concern. This proposal comes from the Law Society and is an attempt to ensure that all information and evidence obtained during an investigation should be forthcoming to all the parties. That is key to the scheme working effectively. It is also important, given the decision that your Lordships' House has just taken, for impartiality of investigation that there is a requirement for openness in the disclosure of evidence and information, which will enable redress to be forthcoming quickly. I beg to move.

Earl Howe: My Lords, a serious anomaly thrown up by the Government's redress scheme is the confusion that it causes on disclosure and privileged legal information. The NHSLA will be tasked not only with the gathering of factual case evidence about what was done, by whom and why—under the Government's proposals, at any rate—but also with the logically quite distinct exercise of considering whether the facts of the case give rise to a legal liability in tort and, if so, whether an offer of financial compensation is appropriate. It would be wrong to call the second half of the process judicial or even quasi-judicial. It is an in-house consideration of the NHS's liability resulting, sometimes, in an offer. As such it is barely susceptible to judicial review. Ordinarily, the substance of in-house deliberations of this kind would be treated as privileged information, as would the legal advice underpinning it. Normally any offer of settlement under the redress scheme would be without prejudice.
	When an offer of redress is accepted, clearly the matter is dealt with and the file is closed. However, when it is rejected, what will be the position of the NHSLA? Will it try to claim privilege under the redress procedures in respect of any subsequent litigation? If offers under the scheme are to be made without prejudice, that suggests that the NHSLA would want to preserve its position on liability. Indeed, there is little point in the offer being without prejudice if the proceedings leading up to it are not privileged.
	Yet, at the same time, we are told by the Government that they wish the redress process to be as open as possible. In his letter of 20 December, the Minister said that the Government are committed to freedom of information and frank disclosure, but almost in the same breath, he adds that there will also be an element of non-disclosure in relation to documents covered by legal professional privilege. That is a very confused message to give out.
	The Government have got themselves into this confusion by conflating, unnecessarily in my view, the two logically distinct halves of the redress process: fact finding, where open disclosure should operate under the rules of natural justice, and fault finding, where the rules of legal professional privilege set in. Earlier I referred to the functional incoherence of the Government's scheme and this is one rather obvious aspect of it. It leads to irrational results. If you separate functions in a logical way, that removes conflicts of interest.
	I support this amendment, not least because it forces the Government's hand. If they want the redress process to be open and to mean what they say about freedom of information, this amendment is the way to achieve it.

Lord Warner: My Lords, I do not for one moment believe that the Government's position is incoherent. It is a fact of life which people have to face that in legal and other processes there is already a lot of legislation, custom and practice about disclosure. One cannot simply overturn that position in relation to particular issues in this Bill. We have tried to have regard to the practicalities and realities of that alternative legislation and practice in framing this legislation.
	The noble Earl, Lord Howe, referred to my letter of 20 December, in which I stated that it is intended that, with regard to any case handled under the scheme, relevant material will be disclosed to the patient or other individuals eligible for redress. For example, it is intended that medical records, adverse incident reports, complaint files, where relevant, and Health and Safety Executive investigation reports, where relevant, would be disclosed. This mirrors the situation of a case being handled by the NHSLA under the clinical negligence scheme for trusts. The existing statutory rights of access to information under the Data Protection Act will apply.
	It is intended that the scheme may provide for the investigation of cases under the scheme to produce an investigation report, and we intend to consider further, in consultation with stakeholders, whether the investigation report should be made available to the patient or individual eligible for redress, subject to any restrictions surrounding data protection. We cannot wish away the existence of other legislation on the statute book.
	However, this amendment is drafted very widely indeed, referring to,
	"all information . . . obtained during the investigation . . . or relied upon".
	It is, however, appropriate that there may be an element of non-disclosure, as documents which are covered by legal professional privilege—for example, confidential communications for the purpose of obtaining legal advice and assistance—will be privileged, in accordance with the general rules of legal professional privilege; again, this is a practical state of existing practice and law. These general rules should apply.
	There may be situations where it is not appropriate for personal information to be disclosed. For example, where an application has been made to the scheme by a dependant following the death of a relative, it may not be appropriate for the medical records of the patient to be disclosed to the surviving relative where the deceased patient wished for their medical records to remain private and confidential. These are reasonable expectations, which have to be respected. However, these issues are best dealt with by applying the existing law on disclosure. We therefore oppose the amendment.

Baroness Barker: My Lords, I thank the Minister for his reply. If the existing law on disclosure worked, then both the NHS complaints procedure and those cases which go through the NHSLA would certainly not take as long as they currently do. There is clearly a deficit of information. I should like to believe that in due course, when this scheme has been in operation for some time and trusts have got into that famous "learning culture" that the Minister spoke of, such measures would be unnecessary. As things stand, however, I am not hopeful that that will the case for quite some time.
	However, I have listened to what the Minister has said and I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 26 not moved.]

Baroness Barker: moved Amendment No. 26A:
	Page 3, line 40, at end insert—
	"(2A) A scheme may make provision for access to an independent medico-legal expert agreeable both to the scheme authority and the person involved in the case which has been the subject of a report by the Patient Redress Investigator.
	(2B) Both the scheme authority and the person involved in the case shall agree to be bound by the findings of the independent medico-legal expert."

Baroness Barker: My Lords, we return to another key area of discussion on the Bill. During Grand Committee my noble friend Lady Neuberger in particular talked about the importance of the Resolve-type schemes that had been piloted and the ways in which those pilot schemes had demonstrated the value of having easy and swift access to medical and legal advice at an early stage, to ensure that people who had an adverse incident within the NHS could obtain redress swiftly and—crucially—without recourse to the courts. I said earlier that we would be discussing an important matter on which the House has made its views known—having an independent first stage during which facts could be established. I also talked about the need to ensure that, once such a report had been made, there be means by which an individual can be given advice in order to know whether it is appropriate for them either to be part of the redress scheme or to take their case to court. It is important that it is medico-legal advice; that is, given by someone who has not just an understanding of the law but sufficient understanding of medical and clinical issues, a matter to which the Minister referred earlier.
	Throughout the debates it has concerned me that it has been unclear exactly how people would obtain such specialist advice. On these matters, the Minister again spoke at length in the letters that he sent to me and the noble Earl, Lord Howe. He talked about the role of ICAS. What he had to say was not sufficient for the type of work about which we are talking. Let us be clear about ICAS; ICAS officers are employed by trusts. They are engaged in a process termed advocacy, which is specifically not the giving of advice. Advocacy is enabling an individual to make their thoughts known. It is different from an individual having recourse to independent medico-legal advice.
	It is therefore important that we make the provision, so that we can ensure that people are not left adrift. That addresses one of the points of criticism that the Minister made of Amendment No. 42, in that it was incomplete. This measure should be seen clearly in conjunction with the work of the patient redress investigators. It is short of what the noble Earl, Lord Howe, spoke of on previous occasions as a McKenzie friend—having someone throughout to give advice—but it is the necessary service that an individual would need to be able to determine where their case should go next. Having such a provision in the Bill is important. I therefore beg to move.

Earl Howe: My Lords, I am in tune with the spirit of Amendments Nos. 26A and 33. The former raises the prospect of the reintroduction of the Resolve dispute resolution scheme which, to all who had anything to do with it, was a successful experiment in mediating claims for redress, and greatly improved access to justice by common consent. I agreed with a great deal of what the noble Baroness had to say.
	However, it is important to stress one point. What the amendment refers to as the findings of the medico-legal expert should not be taken as implying that the expert would be tasked with determining liability. That is a judicial function. What experts do in essence is advise in a non-partial way on the facts and arguments at issue. That may sound like a pedantic point, but in the context of the debate it is important.
	To my mind Amendment No. 33 is also important, because anyone who wishes to have properly informed advice about an offer made under the scheme will want to know that the person giving the advice is appropriately qualified in both a legal and a medical sense. However, perhaps I could anticipate the Minister's remarks in support of his own amendments by asking him a question. Solicitors will be asked to give advice to clients about the adequacy or otherwise of financial offers they may have received from the NHSLA. Is he absolutely satisfied that that activity would accord with the solicitor's professional code of practice? Is it something that solicitors feel able to do freely? To advise on the quantum of an offer requires them at the least to be in possession of sufficient information, but they will not have that information because, as we have heard, the internal deliberations in the NHSLA will be subject to legal professional privilege. Will solicitors therefore be placed in a difficult if not invidious position?

Baroness Royall of Blaisdon: My Lords, I must first apologise for any confusion that has been caused by a minor drafting error in the list of government amendments that was sent out to your Lordships with my noble friend's letter of 18 January 2006. As noble Lords may have noticed, the version of Amendment No. 30 that they received differs slightly in one respect from the amendment as published. I regret that Amendment No. 30 as sent out contained a technical error, in that it would have resulted in the inclusion of an extra word, "of", in Clause 8(1)(b). The error was noticed and the correct amendment was published, but after the letter with the attached list of amendments had been sent out. I assure your Lordships that there is no difference in policy terms, or effect, with regard to Clause 8(1)(b).
	The published statement of policy on the NHS redress scheme makes clear our intention that legal advice on any offer under the scheme and the terms of any settlement agreement is to be given without charge. In Committee, noble Lords expressed concern that Clause 8(1) gives the Secretary of State discretion over the circumstances in which legal advice is to be provided without charge under the redress scheme. I gave an undertaking to noble Lords to reconsider the drafting.
	If the redress scheme is to offer patients a credible alternative to litigation, it has to have the full trust of patients going through the scheme. Amendments Nos. 29, 32 and 34 strengthen the Bill by including a new subsection (1A) in Clause 8 which provides that the scheme must—not may—make such provision as the Secretary of State considers will ensure that all persons making a claim under the scheme will have access to free legal advice in relation to offers and settlement agreements.
	The Secretary of State will be under an obligation to provide for free legal advice in respect of offers and settlement agreements in all cases. I hope that this will provide reassurance that the scheme will not require the waiver of rights by those harmed during NHS care, unless those people are fully aware of the consequences and consent to that waiver. In Committee, concerns were also raised over when a jointly instructed independent medical expert may be involved in the process.
	When considering Clause 8(1), I also took the opportunity to review the drafting of Clause 8(1)(b), which enables the provision of services,
	"designed to help in reaching an agreement to settle".
	We would not wish there to be any restriction on the stage at which such services may be provided, and hence this restriction has been removed by Amendment No 31. Amendment No. 30, by inserting the words,
	"in connection with proceedings under the scheme",
	enables the scheme to provide for appropriate services at any stage of the scheme. This will enable the scheme to provide for services which are intended to help determine questions of liability, such as, where appropriate, the services of a jointly instructed medical expert to assist with questions about whether a case falls within the scope of the scheme. It will also enable the scheme to provide for services intended to help determine the appropriate level of compensation to be offered, such as, where appropriate, the services of a jointly instructed medical expert to assist with questions about the extent of an injury, and future consequences to the patient as a result of that injury.
	Amendment No. 31 makes clear that the Secretary of State may make provision for a range of services in connection with proceedings under the scheme, including in particular the commissioning of services from medical experts. We intend to work closely with stakeholders when drafting the secondary legislation to determine the circumstances in which it may be appropriate to commission an independent medical expert.
	Amendment No. 26 would insert into Clause 6 a power for the scheme to make provision for access to an agreed independent "medico-legal expert". I consider this to be inappropriate. First, it is not clear what exactly is meant by the term, although the explanation given by the noble Baroness, Lady Barker, has thrown some light on that. If it is envisaged that patients will have access to a medical expert with legal qualifications, there are clear cost and resource implications. Such expertise may not be appropriate for the type of more straightforward, lower-value cases that will be dealt with under the scheme.
	Secondly, we have existing powers to provide both expert medical and legal advice. Clause 8 specifically provides for both legal advice and access to other services, including the services of medical experts. It is envisaged that the services of jointly instructed independent medical experts may be engaged to assist in determining questions of eligibility for the scheme and the appropriate level of compensation to be offered.
	As regards legal advice, it is intended that the achievement of quality mark status will be used as the standard for the legal advice given at the point at which an offer is made under the scheme, and that the system of giving advice would be similar to current practice for litigated cases—that is, the work may be undertaken by or will be supervised by the panel solicitor. It is intended that these measures will ensure that patients have access to an appropriate level of specialised advice.
	The government amendments to Clause 8(1)(b) provide a broad power to allow for the provision of services throughout the process. That is a satisfactory solution that will allow appropriate services to be used in appropriate cases. In many cases, settlement will be reached without the need for other services. We would expect the patient to be consulted throughout.
	Importantly, Amendment No. 26 would also require the scheme authority and the patient to be bound by the findings of the independent medico-legal expert. It seems that the amendment seeks to enable this expert to determine liability. This confuses the investigation process and the decision-making process. There will be cases where an independent expert medical opinion is necessary. The scheme makes provision for that. The opinion of the expert will, of course, be highly persuasive. However, he or she is not there to pre-empt the decision of the scheme authority, but to add to the knowledge of how the incident arose. The amendment would take the assessment of eligibility under the scheme out of the hands of the scheme authority, so I think that this amendment raises many questions about who these medico-legal experts—who it is actually envisaged will be determining eligibility—would be.
	The amendment would seek to incorporate into the redress scheme a form of independent dispute resolution, which would be inappropriate and have huge cost implications. I firmly believe the scheme authority has to be responsible for making decisions about eligibility under the scheme. The scheme authority will make decisions according to the law of tort and after considering appropriate expert evidence, if necessary. The NHSLA, as the proposed scheme authority, is best placed to make these decisions. That is its area of expertise. The redress scheme is intended to be an out-of-court settlement scheme. If an offer is not made under the scheme or is rejected, the patient retains his right to seek redress though the courts. The scheme is not intended to determine rights and bind patients.
	There is a further safeguard. Clause 14 introduces a complaints mechanism for cases of alleged maladministration. Ultimately, these cases may go to the Health Service Commissioner. Any decision made by the scheme authority on eligibility or quantum which does not take into account the facts, or unreasonably overrides an expert medical opinion, may be expected to fall within the scope of this power. This safeguard is sufficient to ensure that the evidence provided by independent medical experts is appropriately taken into account when decisions are made under the scheme.
	Amendment No. 33 would provide that legal advice on the offer and settlement under the redress scheme would specifically be specialist medico-legal advice. This amendment provides no flexibility. It suggests that specialist medico-legal advice will be necessary in all cases falling under the redress scheme. I am opposed to this, as I do not believe that it would be cost-effective for independent medico-legal advice, or indeed independent medical expert advice, to be obtained with regard to every case under the scheme—for example, in some cases it will be clear that there is liability without the need for an independent medical expert opinion. This scheme is for cases of lower monetary value. In some cases the patient will simply require legal advice on the offer and settlement agreement. The amendment restricts flexibility and has the potential to lead to additional unnecessary costs. I therefore oppose both Amendments Nos. 26 and 33.

Baroness Barker: My Lords, I thank the Minister for her very full and considered answer. I listened to what she said very closely. The issue we still have between us is on the importance of ensuring that people have quick and easy access, not to legal advice but to specialist legal advice. She will know, because she took part in our debates in Committee, that the success of the Resolve pilot and the speedy resolution scheme—and one of the key things that made them attractive to people as an alternative to going down the route of litigation, which remains open to most people—was that they would have easy access to people with that particular background.
	The comments made in Committee by the noble Lord, Lord Warner, about the Community Legal Service quality mark have been, to some extent, reiterated by the noble Baroness. He pointed out that the CLS quality mark applies to organisations such as legal practices and not to individuals. Therefore I am not convinced that what the noble Baroness has said makes the scheme as it stands sufficiently attractive to persuade people that it is a more beneficial route for them because it will not just be quick but will also have within it that specialist knowledge.
	The noble Baroness questioned who these people would be. We have left that matter open, not least because this is a specialist field, but because it is possible that practitioners or people who currently work in it could come within the overall ambit of the scheme. I do not accept many of her arguments. If we do not in some way get the Resolve-type pilots back into this scheme, then the crucial thing that was good about them—the learning that came from having all that legal advice and people there working together—will be lost, and not just to patients. It will also be lost to trusts. It is important to test the opinion of the House on this matter.

On Question, Whether the said amendment (No. 26A) shall be agreed to?
	Their Lordships divided: Contents, 90; Not-Contents, 121.

Resolved in the negative, and amendment disagreed to accordingly.

Earl Howe: moved Amendment No. 27:
	Page 3, line 43, at end insert—
	"( ) A scheme must provide that where a settlement agreement relates to a child or an incapacitated adult (as defined by Part 21.1(2) of the Civil Procedure Rules 1998 (S.I. 1998/3132)) and includes the payment of financial compensation, the agreement is subject to the approval of the court."

Earl Howe: My Lords, we return to an amendment that I tabled in Grand Committee which, in common with a similar amendment tabled by the Liberal Democrats, covered the issue of children and incapacitated adults who are offered a settlement of the claim under the redress scheme. My contention was and is that there should be a specific requirement in the Bill that any such settlement agreement offered to a child or incapacitated adult should be approved by the court before it is concluded. Indeed, where appropriate, it should be for the court to invest and manage any funds on behalf of that person.
	In Grand Committee, the Minister said that he had no quarrel with the intention behind the amendment and that it was the Government's intention to incorporate the substance of the amendment into the scheme. I welcome that assurance. However, we are dealing here with a fundamental legal principle. Any child or adult who is unable to deal with his or her own legal affairs and has assets of value is protected from unscrupulous adults who may use those assets for their own benefit. The amendment is designed to ensure that such people have exactly the same protection under the redress scheme. That is not an onerous obligation. The procedures employed by the courts for dealing with such applications are designed to operate with the minimum of formal requirements.
	I believe that no issue of principle divides us on this, but the noble Baroness may like to note that when I met the Law Society, it was adamant that, in its view, this was an issue of such importance as to warrant being written into the Bill, not simply regulations. From a body of the standing of the Law Society, I take that message to heart and I therefore beg to move.

Lord Warner: My Lords, as I understand Amendment No. 27, it would place explicitly in the Bill the need for settlement agreements in respect of a child or incapacitated adult to be subject to the approval of a court of law. We believe that the amendments are unnecessary. Clause 6(2)(e) enables the scheme to make provision for settlement agreements under the scheme to be subject in cases of a specified description to approval by record. I reiterate what I said in Committee: it is our firm, stated intention that the scheme will specify that awards made to children and incapacitated adults will require approval by record to ensure that accepting the offer is in the patient's best interests.
	We agree on that point with the noble Earl, but the amendment would remove the flexibility for the scheme to adapt to ensure that settlement agreements made in other circumstances could be made subject to court approval, should that be necessary in future, following further consultation with stakeholders. We do not object to the principle of cases relating to children and mentally incapacitated adults being subject to the approval of the court. We believe that the amendment would restrict the ability to send other types of cases to the courts, where that was deemed appropriate.

Earl Howe: My Lords, that was a helpful reply. I had not realised the unintended consequence of the amendment, which is an important one. I shall reflect further on the matter and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 7 [Suspension of limitation period]:

Lord Warner: moved Amendment No. 28:
	Page 4, line 5, leave out subsection (1) and insert—
	"(1) A scheme must make provision for the period during which a liability is the subject of proceedings under the scheme to be disregarded for the purposes of calculating whether any relevant limitation period has expired.
	(1A) In subsection (1), the reference to any relevant limitation period is to any period of time for the bringing of civil proceedings in respect of the liability which is prescribed by or under the Limitation Act 1980 (c. 58) or any other enactment."

Lord Warner: My Lords, in Committee, it was suggested that the drafting of Clause 7 was difficult to understand. Parliamentary counsel was invited to reconsider the drafting and a revised wording has been provided in the amendment. There is no policy change behind the amendment. It is simply intended to clarify the policy in the Bill. I hope that new subsection (1) now makes it clear that the clause requires the scheme to provide for the period of time during which a case is being dealt with under the scheme to be disregarded for the purposes of calculating whether any time limit for bringing court proceedings has expired. For limitation purposes, time ceases to run while a case is being considered under the redress scheme.
	We accept that, when the redress scheme has been triggered, the processes will take time to complete. It is right, therefore, that patients' rights to pursue court proceedings are maintained while their case is being considered under the scheme. There should be no reduction in the time left available to them to bring court proceedings just because their case has been considered under the NHS redress scheme. Patients must not be put under pressure to complete proceedings under the scheme because of the existing time limits for bringing court proceedings.
	Noble Lords may recall that Section 11 of the Limitation Act 1980 provides that court proceedings founded in tort for damages in respect of personal injury cannot generally be brought more than three years from the date on which the cause of action accrued—or, if later, the date on which the person became aware of the cause of action.
	That provision will ensure that a patient is not prejudiced by or prevented from litigating as a result of waiting for the result of an investigation under the redress scheme—for example, where he or she is dissatisfied with an offer made under the scheme and therefore subsequently wants to bring court proceedings. It effectively stops the clock regarding any time limit for bringing court proceedings in respect of the same incident for as long as the case is being considered under the redress scheme.
	It was also suggested that a specific amendment to the Limitation Act 1980 is required to ensure that the limitation period does not run while there are proceedings under the scheme. That has been considered, but we are satisfied that no such amendment is required. It is not necessary for the modification of the relevant time limits in the Limitation Act to appear in the Limitation Act itself. Although Part II of that Act contains a number of provisions extending or excluding the ordinary time limits, it is unnecessary for all such extensions and exclusions to appear there.
	Clause 7 now clearly enables the scheme to affect the operation of the Limitation Act, enabling it to modify the limitation period in relation to liabilities that are the subject of proceedings under the redress scheme. New subsection (1A) makes explicit that the scheme can amend the Limitation Act, as there is now express reference to the Act. Under existing subsection (2), which remains unaltered by the amendment, the scheme may define when a case is considered to be the subject of proceedings under the scheme, so that it is absolutely clear when the clock stops running for the purposes of calculating the period of time to be disregarded. I beg to move.

Baroness Barker: My Lords, I believe that it was Members on these Benches who made the point about lack of clarity in the original wording of Clause 7. The government amendment makes the matter somewhat clearer, and I am grateful for the Minister's explanation of the Limitation Act 1980. It may not be quite as clear as one would have liked, but I imagine from what he has said that it will be made clearer in plain user language when the guidance is published. So I thank him for his clarification.

On Question, amendment agreed to.
	Clause 8 [Legal advice etc.]:

Lord Warner: moved Amendments Nos. 29 to 31:
	Page 4, line 11, at beginning insert "Subject to subsection (1A),"
	Page 4, line 14, leave out "of" and insert "in connection with proceedings under the scheme of other"
	Page 4, line 14, leave out "designed to help in reaching an agreement to settle" and insert ", including the services of medical experts"
	On Question, amendments agreed to.

Lord Warner: moved Amendment No. 32:
	Page 4, line 15, at end insert—
	"(1A) A scheme must make such provision as the Secretary of State considers appropriate in order to secure that individuals to whom an offer under the scheme is made have access to legal advice without charge in relation to—
	(a) the offer, and
	(b) any settlement agreement."
	On Question, amendment agreed to.
	[Amendment No. 33, as an amendment to Amendment No. 32, not moved.]

Lord Warner: moved Amendment No. 34:
	Page 4, line 16, after "(1)(a)" insert "or (1A)"
	On Question, amendment agreed to.

Earl Howe: moved Amendment No. 35:
	Page 4, line 18, leave out "a" and insert "one or more than one"

Earl Howe: My Lords, my purpose in tabling this amendment is not to baffle the Minister but to flag up a matter which we debated briefly in Grand Committee; namely, who, or which body, will hold the list of solicitors authorised under the redress scheme to provide legal advice? In Grand Committee, the Minister indicated the Government's intention to entrust this role to the Legal Services Commission because this was the best way, in his view, of guaranteeing to patients that they would receive advice and services of an appropriate standard.
	I feel that I must challenge that rationale. The LSC is, of course, a highly respectable non-departmental public body. However, its role is not to accredit solicitors who have experience in the clinical negligence field. In fact, it can hardly be said to accredit solicitors in any sense at all other than by reference to their employment and management procedures and to their experience in legal aid. The list held by the Legal Services Commission is in fact a list of practitioners who hold a legal aid franchise. That list is rather different from the list that I think most of us want, which is a list of clinical negligence specialists. Not all clinical negligence specialists have a franchise with the Legal Services Commission. If the Government follow through their intention to give the LSC this responsibility, they will be doing one thing—restricting unnecessarily the pool of available solicitors qualified in the field. That, I suggest, would be a retrograde step.
	I mentioned in Grand Committee that currently there are two recognised lists of clinical negligence lawyers: one is held by the Law Society; the other by AvMA—Action against Medical Accidents. What is wrong with the idea of entrusting these two bodies with the joint responsibility of holding the list? I beg to move.

Baroness Royall of Blaisdon: My Lords, Amendment No. 35 is intended to enable a list of approved providers of legal advice to be held by more than one person specified in secondary legislation, as the noble Earl has explained. In fact, we believe that the amendment is not necessary to achieve this effect because, as a result of the Interpretation Act, references such as "a specified person" in Clause 8(2) are also taken to include a reference to more than one specified person. It would therefore be open to the Secretary of State under the Bill as currently drafted to specify more than one person to prepare the list of those who could provide legal advice in relation to the scheme, if that was what was required.

Earl Howe: My Lords, I accept that the amendment is, strictly speaking, unnecessary. It was designed as a device by which I could present an argument to the Minister about the Legal Services Commission and perhaps the alternative model that I had in mind. However, I see that my remarks fell on stony ground. I would just like to seed the thought in the Minister's mind that when the Government consult on this issue, they take into account the points that I have made. I have nothing against the Legal Services Commission; I simply do not think that its role lends itself to the kind of outcome that we all want. I understand that the Government may need a little persuading. I hope, however, that they will reflect on the matter. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 10 [Scheme members]:

Lord Warner: moved Amendment No. 36:
	Page 5, line 21, at end insert—
	"( ) require a member of the scheme to prepare and publish an annual report about such cases and the lessons to be learnt from them."
	On Question, amendment agreed to.
	[Amendments Nos. 37 and 38, as amendments to Amendment No. 36, not moved.]
	Clause 11 [Scheme authority]:

Earl Howe: moved Amendment No. 39:
	Page 5, line 32, at end insert "save for the investigation of the facts of cases in accordance with section 6(2)(a)"

Earl Howe: My Lords, I spoke to this amendment as part of an earlier group, and I beg to move.

On Question, amendment agreed to.

Baroness Barker: moved Amendment No. 40:
	Page 5, line 40, after "monitoring" insert "and annual review"

Baroness Barker: My Lords, I return briefly to the subject of how the lessons which have to be learnt and the redress scheme which will be operated by individual NHS bodies will be reviewed. The purpose of the amendments is to ensure that the Healthcare Commission has the power to monitor the scheme and to produce an annual review, and that the commission's work will reflect on the independence and the dissemination of training, performance and best practice in individual trusts.
	This is yet another way of trying to get to the heart of all this, in that lessons will not be learnt and good practice in developing the culture of learning in the NHS will not happen unless there is a reason for individual trusts to do so. We believe that incorporating that into a review will set up the learning culture which the Minister has referred to before. I beg to move.

Lord Warner: My Lords, Amendment No. 40 seeks to extend the functions of the scheme authority, enabling the scheme to provide that the scheme authority shall not only monitor the carrying out of functions under the scheme by scheme members but provide an annual review of those members.
	As noble Lords will be aware, I have taken on board concerns expressed in Committee about the need for an independent check on performance in the operation of the redress scheme. I have proposed that consideration of the effectiveness of the operation of the NHS redress scheme, including investigations carried out under it, be included as part of the Healthcare Commission's annual review of the provision of healthcare by and for NHS bodies. The Healthcare Commission currently carries out an annual review of the provision of healthcare, under powers contained in Section 50 of the Health and Social Care (Community Health and Standards) Act 2003. It takes into account the statement of standards set by the Secretary of State; those core standards are set out in Standards for Better Health. The intention is that when Standards for Better Health is reviewed, the Secretary of State will include a new standard relating to redress.
	Similarly, the Healthcare Commission devises and publishes criteria against which annual reviews are carried out. It is intended that the Healthcare Commission would also include new criteria against which the operation of the scheme would be reviewed. Following each annual review, the Healthcare Commission awards a performance rating. The intention is that that will provide an independent overview of the redress scheme process. One element of the annual review would be the provision of the redress scheme.
	Amendment No. 40 is therefore unnecessary on two counts. First, the Bill contains powers to provide for the scheme authority to monitor the carrying out of functions by scheme members under the scheme. Secondly, if there is to be an annual overview of performance in the operation of the redress scheme, for reasons of consistency and coherence it would be most appropriate for the Healthcare Commission, rather than the scheme authority, to undertake that role. I am puzzled by the amendment, given that I thought we had gone a long way to ensure that there would be independent overview of the redress scheme's performance—clearly we did not go far enough in the mind of some noble Lords.
	Amendment No. 41 provides, first, that the scheme authority may have functions to ensure its independence from the bodies that have liabilities under the scheme and, secondly, that the scheme authority may have functions in relation to improving performance within NHS trusts and issuing guidance on best practice and training. The amendment seems to enable the scheme to provide that the scheme authority should ensure independence from, in effect, scheme members. I am unclear what the amendment does in that respect. Under the Bill, the scheme authority will be a specified special health authority. Its role will be defined by the Secretary of State. Although it would involve close working with scheme members, it would certainly be independent of those members.
	I agree that it is appropriate for scheme members to be given assistance to improve their performance under the redress scheme and that scheme members should be given guidance on best practice and training. However, the broad power in Clause 11(2)(c) enables the scheme to provide that the scheme authority shall provide advice or other guidance about specified matters—that could include advice on how to improve performance and on best practice. Clause 10(2)(d) requires scheme members to have regard to any advice or guidance issued by the scheme authority. We therefore have existing powers to achieve this effect.
	We also propose to give the Healthcare Commission a specific role regarding the provision of training to scheme members on the operation of the redress scheme. The Healthcare Commission is well placed to do that because it already carries out training on the handling of complaints at local level. It is intended that training on the operation of the redress scheme will emphasise links between handling complaints and handling redress cases, and will cover good practice.
	The Healthcare Commission, as opposed to the scheme authority, would be well placed to undertake that role. We are satisfied that the Healthcare Commission can take on both these proposed new roles—the provision of an annual review and training about the scheme—without the need to confer any new functions on it. As I said in my letter of 18 January, when I set out that we proposed to give the Healthcare Commission these two new roles, no amendment to its existing powers in primary legislation is required. Amendments Nos. 40 and 41 are therefore unnecessary.

Baroness Barker: My Lords, I thank the Minister for that response, which helped to clarify that the important functions of dissemination of guidance on good practice and training have not been overlooked in the rather open wording of the Bill. I should have said earlier that we welcomed the Minister's remarks in his letter about the Healthcare Commission. We believe that the more the Healthcare Commission is involved in monitoring the redress scheme in particular trusts, the better. It would be an added layer of vigilance over the scheme that was perhaps not obvious previously. I have listened to the Minister's remarks and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 41 not moved.]

Earl Howe: moved Amendment No. 42:
	After Clause 11, insert the following new clause—
	"PATIENT REDRESS INVESTIGATORS
	(1) The Secretary of State shall by order make provision for the appointment of suitably qualified patient redress investigators who shall have conduct of the investigation of the facts of cases in accordance with section 6(2)(a).
	(2) A patient redress investigator shall—
	(a) conduct the investigation of the facts of a case in accordance with the rules of natural justice; and
	(b) produce a report on the principal findings of his investigation and on any lessons to be learnt in accordance with section 10(2)(h).
	(3) A report produced under subsection (2) may provide the basis for the giving of any explanation in accordance with section 3(2)(b) and any assessment of liability in tort in accordance with section 6(2)(b).
	(4) The Secretary of State shall by order set out the procedures for the investigation of cases in accordance with section 6(2)(a), prescribing such duties and conferring such powers on patient redress investigators as he may consider appropriate for the effective discharge of their functions.
	(5) The Commission for Health Audit and Inspection shall maintain and publish a list of patient redress investigators, and shall have responsibility for overseeing the carrying out of the functions of such investigators."

Earl Howe: My Lords, I spoke to this amendment earlier with Amendment No. 22, which the House agreed to. I mentioned then that there was a mistake in proposed subsection (5), which should refer to the Commission for Healthcare Audit and Inspection and not to what is printed. Subject to that small alteration, I beg to move.

On Question, amendment agreed to.
	Clause 12 [Disclosure to scheme authority]:

Baroness Royall of Blaisdon: moved Amendment No. 43:
	Leave out Clause 12.

Baroness Royall of Blaisdon: My Lords, Clause 12(1) disapplies the common law duties of confidentiality in relation to the disclosure of information required by the scheme to the scheme authority. On further reflection, we now consider that unnecessary.
	Since Committee, officials have discussed disclosure in more detail with the NHSLA, which handles the clinical negligence scheme for trusts. We now consider that, under the redress scheme, it is right for patient consent to be sought before any information covered by the common law duties of confidentiality is disclosed to the scheme authority. Where a patient refuses to give consent, it may not be possible to proceed with the case. It is intended that that will be made clear to patients when the initial request to disclose information to the scheme authority is made. Subsection (1) of Clause 12, which Amendment No. 43 deletes, is therefore unnecessary.
	Amendment No. 43 also deletes subsection (2). Following further discussions with the Department for Constitutional Affairs, we are now of the opinion that Clause 12(2) duplicates the provisions of the Data Protection Act 1998. Subsection (2) provides that a person may not be required to disclose information to the scheme authority in relation to which he is under a duty of non-disclosure under the Data Protection Act. We consider the clause unnecessary and believe it should be omitted. The duties of non-disclosure under the Data Protection Act will apply in any event. I beg to move.

On Question, amendment agreed to.
	Clause 14 [Complaints]:

Baroness Royall of Blaisdon: moved Amendment No. 44:
	Page 7, line 12, after "other" insert "statutory"

Baroness Royall of Blaisdon: My Lords, in Committee noble Lords raised concerns that no explicit provision was made for misdirected complaints to be appropriately redirected by either the scheme member or the scheme authority.
	Many patients find the complaints processes relating to their NHS care difficult to understand and to navigate. Often, the complaint is initially directed to their healthcare provider. Patients and carers involved with the NHS redress scheme may, mistakenly, believe that all complaints, whether arising out of their care or out of the handling of their case under the redress scheme, should go to the scheme member or the scheme authority. However, that may not always be appropriate. We therefore understand that, through no fault of the complainant, confusion may arise.
	Amendment Nos. 44 to 47 together introduce a power to put in place arrangements to ensure that complaints made under the redress scheme complaints procedure, but raising matters that fall under another statutory complaints procedure, are referred directly to the appropriate body. To refer complaints in this manner is a matter of good practice. The amendments mean not only that patients using the scheme will not be responsible for finding the appropriate body to which to refer their complaint if it is misdirected through the redress scheme complaints procedure, but that their complaints will not be unnecessarily delayed. The possibility that some adjustment of the appropriate procedure may be necessary to allow complaints to be redirected, without the patient having to take action, has also been provided for.
	The intention behind Amendment No. 48 is to ensure that personal data gathered under the redress scheme complaints procedure can be exempt from certain provisions of the Data Protection Act 1998—namely, the subject information provisions. This exemption will, in any case, apply only to the extent to which the application of those provisions would be likely to prejudice the proper discharge of the function of considering the complaint. The subject information provisions of the Data Protection Act allow for individuals, except in certain defined circumstances, to seek and obtain information held on them by others.
	Section 31 of the Data Protection Act provides an exemption from these provisions by reference to a number of different categories of regulatory function. Section 31(6) exempts personal data processed for the purpose of considering a complaint, including complaints about healthcare under the Health and Social Care (Community Health and Standards) Act 2003. Amendment No. 48 therefore makes a scheme member or scheme authority considering a complaint under the redress scheme complaints procedure also exempt from the subject information provisions, to the extent to which applying those provisions would be likely to prejudice the proper discharge of their function of considering the complaint.
	As already mentioned, under the existing NHS complaints procedure, personal data gathered for the purposes of considering a complaint may not be disclosed to the complainant to the extent to which this would prejudice the proper consideration of the complaint. For reasons of consistency, we believe that a similar exemption should apply to the redress scheme complaints procedure. I beg to move.

Baroness Barker: My Lords, I thank the noble Baroness, Lady Royall of Blaisdon, for her response on Amendments Nos. 44 and 45. I raised in Committee the point about complaints being directed from the redress scheme towards complaints schemes and about ensuring that the process by which that was done was fair to individuals. The noble Baroness gave a very technical presentation of the subject information provisions of the Data Protection Act. It would be grossly unfair to ask her, without notice, to explain exactly what she means, but subject information provisions are extremely important, particularly in relation to health and social care information. I would therefore very much welcome it if she would write to me to explain precisely what the provisions are. I believe that the noble Baroness is talking about information on a person that may refer to other individuals. I ask her to write to me in some detail about that before the Bill reaches the next stage.

Baroness Royall of Blaisdon: My Lords, I will write in detail, with pleasure.

On Question, amendment agreed to.

Baroness Royall of Blaisdon: moved Amendments Nos. 45 to 48:
	Page 7, line 12, leave out "established by or under any enactment"
	Page 7, line 15, leave out paragraph (b).
	Page 7, line 18, at end insert—
	"(8) The regulations may, in relation to complaints in connection with a scheme which are made or purport to be made under the regulations, make provision for securing—
	(a) that any matters raised in such complaints which fall to be considered under other statutory complaints procedures are referred to the body or other person operating the appropriate procedures;
	(b) that any such matters are treated as if they had been raised in a complaint made under the appropriate procedures.
	(9) In subsections (7) and (8), "statutory complaints procedures" means complaints procedures established by or under any enactment."
	Page 7, line 18, at end insert—
	"(10) In section 31(6) of the Data Protection Act 1998 (c. 29) (exemption from subject information provisions for personal data processed for purposes of certain complaints procedures), after "complaint under" insert "section 14 of the NHS Redress Act 2006,"."
	On Question, amendments agreed to.

Baroness Barker: moved Amendment No. 49:
	After Clause 14, insert the following new clause—
	"APPEALS
	The Secretary of State may by regulations make provision for an appeals mechanism in relation to decisions made under the scheme."

Baroness Barker: My Lords, this is a repeat of an amendment discussed in Committee. It was submitted by the BMA, which wishes us to pursue it. Notwithstanding some of the points made throughout our discussion about how the redress scheme would work, particularly in relation to complaints procedures, the BMA wishes to make the point that there is no appeals mechanism for a person who disagrees with decisions reached under the scheme, regardless of whether they are entitled to redress. The BMA remains concerned that advice will be available only in certain circumstances. Therefore, in the BMA's view, and given the technical nature of some of the decisions that will be reached, there is still a need for an appeals procedure within the redress scheme. I beg to move.

Earl Howe: My Lords, the noble Baroness's amendment has its heart in the right place, because she has identified what many will see as a drawback in the Government's model for delivering redress. It is a "take it or leave it" process. If you do not like the offer you get, what can you do? The Government's answer is that if you want to take things further you can go to court. Many people will not be able to afford to do that, or, for other perfectly valid reasons, will not want to—hence the idea of an appeal mechanism.
	For all that, I cannot support this amendment. The whole point of the Government's redress scheme is that it is not a judicial process at all. It amounts to being an in-house consideration of the NHS's own liability. That consideration will result sometimes in an offer of financial compensation. Offers are to be made without prejudice, with only partial provision for disclosure of factual information. The rules of legal professional privilege will operate. These are not the features of a process open to appeal; you cannot appeal against an offer or a deliberative process. The amendment refers to a decision as though there were something judicial about what the NHSLA will be tasked with doing. With due respect to the noble Baroness and the BMA, an offer is not the same thing as a decision. It is something you either accept or reject. Therefore, it is inappropriate to seek an appeal mechanism in this particular context.
	There is perhaps one other point to add—something that perhaps should not go unsaid before these Report proceedings are concluded. The thought behind the noble Baroness's amendment is entirely understandable because, right the way through our debates on the Bill, the Government have very consciously wished to convey the impression that what they are offering is something novel. It is not. The NHSLA will be tasked with doing work that it has been doing for years. The NHSLA is already in the business of making offers of financial compensation to aggrieved patients and settling claims out of court. A very high proportion of claims made against the NHS are settled in this way. It is a familiar and well tried process. So we should not allow ourselves to be seduced by the idea that the Bill provides a genuinely novel alternative to litigation. Stripped down to its essentials, it is a repackaging exercise: the same system with a few knobs on. That is another reason why the absence of an appeal mechanism should not astonish us unduly.

Baroness Royall of Blaisdon: My Lords, clearly I would not entirely accept that this is a repackaging. I think that it is a very exciting and novel initiative—but we can discuss that some other time.
	The redress scheme is intended to facilitate the resolution of cases in a swift manner, ensuring that redress is provided to the patient as quickly as possible. The aim is to resolve cases quicker than the current average of about 18 months for litigated cases. Creating an appeals mechanism would extend the time taken to resolve cases and unnecessarily increase both the costs and the bureaucracy of the scheme. It is difficult to estimate the precise cost of an appeals mechanism for decisions under the scheme because we do not know how many claimants might appeal. However, to illustrate the potential cost, departmental economists have modelled a hypothetical example which assesses the extra cost of an appeals mechanism in two scenarios: first, where the number of extra claims under the scheme is low; and secondly, where the scheme attracts a high number of extra claims.
	The modelling is based on an assumption that 10 per cent of unsuccessful claimants appeal and, of those, 1 per cent have their appeals upheld. Where the number of extra claims is low, departmental modelling shows that this would affect approximately 320 claimants at a cost of around £1.24 million per year, some £840,000 of which would go to lawyers in legal fees. Where the number of extra claimants is high, approximately 930 claimants would be affected, costing around £3.27 million per year, of which £2.42 million would go to lawyers in legal fees. These projected costs are based on the assumption that an existing organisation or body would handle the appeals. Were a new independent body to be set up to administer an appeals mechanism, that would carry a considerable additional cost implication and would contradict the conclusions of the department's recent arm's-length body review. I believe that an appeals mechanism is not necessary as the scheme already has a number of safeguards that adequately protect the interests of patients.
	As noble Lords are aware, it is intended that offers under the scheme will be equivalent to what would have been received through the courts. There would be no advantage in the scheme authority knowingly offering less compensation than would be received through the courts because, following legal advice, the offer would be rejected and may subsequently be reconsidered. That would be counter-productive. It would slow down the process and unnecessarily add to the administrative costs of the scheme. Perhaps more importantly, it would defeat the purpose of the scheme because patients would lose confidence in the scheme and would not use it.
	One purpose behind the scheme is to enable redress to be provided, where appropriate, without recourse to civil proceedings. However, if an offer is not made, or is rejected, the applicant's legal right to pursue a claim will remain in being, unaffected by the scheme, and can be pursued through the courts in the ordinary way. We are satisfied that the scheme does not determine any civil rights for the purposes of Article 6 of the European Convention on Human Rights. Convention rights do not therefore require decisions under the redress scheme to be appealable.
	Furthermore, where a patient or other person whose case is considered under the scheme is unhappy and believes that there has been maladministration, he or she will be able to complain under the redress scheme complaints procedure. Secondary legislation will set out the detail of how this complaints procedure will work. It is envisaged that most complaints will be resolved informally at local level. If a patient wishes to make a formal complaint about maladministration under the scheme, it is intended that he or she will be able to make a complaint to the scheme authority.
	The Health Service Commissioner for England will be able to investigate complaints of maladministration from patients, including maladministration by scheme members of their functions under the scheme, or in connection with the settlement agreement entered into under the scheme, or in relation to the redress scheme's own complaints procedure. Patients making a complaint about matters other than maladministration of the scheme will be able to use the NHS complaints procedure.
	We intend the redress scheme to be a speedy and effective means by which to provide appropriate remedy to patients harmed by mistakes during their healthcare. It has in place a number of appropriate and effective safeguards to protect patients. An additional appeals mechanism would create a time delay in taking cases through the process and would unnecessarily increase both costs and bureaucracy within the scheme.

Baroness Barker: My Lords, I thank the Minister for her lengthy reply to a small amendment. I listened to all her arguments and I am least convinced by the one on cost. I take what she said about the complaints procedure, although some of the amendments agreed to in the previous group may have made clearer how someone who is dissatisfied with the proceedings of the redress scheme should proceed. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 17 [Framework power]:

Earl Howe: moved Amendment No. 50:
	Leave out Clause 17.

Earl Howe: My Lords, in Grand Committee we had a useful, although ultimately inconclusive, debate on Clause 17. The concerns which I raised at that time were related not so much to the principle of allowing the Welsh Assembly the power to formulate their own NHS redress scheme for Wales as to the constitutional propriety of devolving powers from Westminster in this manner; and the lack of clarity on the precise scope of the powers that are defined here. My starting point was the report published by your Lordships' Delegated Powers and Regulatory Reform Committee, which stated:
	"We consider that the power in clause 17 is so wide that, if conferred on a Minister of the Crown in relation to England, it would be inappropriate even if subject to affirmative procedure".
	I remarked previously that that is a very strong and unequivocal statement.
	The answer given by the Minister—a point also made, very eloquently, by the noble Lord, Lord Rowlands—was that your Lordships' committee had not compared like with like. The Minister stated that Clause 17 does not seek to transfer powers to Welsh Ministers; rather it seeks to transfer powers to the Welsh Assembly as a whole. The Welsh Assembly, as a democratically elected legislature, has extensive procedures for dealing with secondary legislation—procedures fuller and more rigorous than those that apply to secondary legislation at Westminster.
	I take that point. I also accept that framework powers of this general type were given the enthusiastic backing of the Richard commission as well as of the Assembly. These are no longer points of contention between us. The Minister also clarified in Grand Committee that this framework power is not in any way dependent on the reforms in the Government of Wales Bill, currently being debated in another place. The meeting that I had with her and her honourable colleague Mr Ainger did much to flesh out that issue, along with others. I thank them both for the helpful briefing that they jointly provided.
	Having said all that, I wish to focus on one further aspect of this matter. We have been asked to accept the reassurance that it will be the Welsh Assembly, rather than Welsh Ministers, who will be in a position to exercise the framework power in Clause 17; and the further reassurance that the granting of framework powers to the Assembly is independent of the reforms proposed in the Government of Wales Bill. Yet page 4 of the Explanatory Notes to the Government of Wales Bill states:
	"Under the proposals . . . most of the statutory functions which currently are exercised in the name of the Assembly would formally become the responsibility of Assembly Ministers. The Assembly's current order-making powers would in future generally be exercised by Ministers".
	That concerns me. On the face of it, while it may be true that the framework power in Clause 17 is, strictly speaking, independent of the reforms in the Government of Wales Bill, that Bill would seem to have the potential to bring about the very situation envisaged by the committee chaired by the noble Lord, Lord Dahrendorf, when it voiced its criticism of this clause; namely the exercise by Assembly Ministers of inappropriately wide powers. The clause does not bring that about but, in combination with the Government of Wales Bill, it appears to be able to.
	I do not for a minute doubt the good faith of Ministers. Nevertheless, we need to have it squarely on the record that there is no question of the provisions of the Government of Wales Bill being used by the Assembly to confer broad framework powers on the Executive. Clause 17(4)(c) is the immediate safeguard against that happening; in layman's language, this provision amounts to a bar on sub-delegating. But we understand from the letter sent by the noble Lord, Lord Warner, to the noble Lord, Lord Dahrendorf, that, under the Government of Wales Bill, framework powers such as this will be converted into so-called measure-making powers. Therefore, the bar on sub-delegation will fall away. Where does that leave us then?
	I should therefore be grateful if the Minister could reassure me—I know that she wishes to—about the way in which the powers being granted in this clause may ultimately be used and by whom. Notwithstanding anything contained in the Government of Wales Bill, I should like to hear her say that these broad powers will reside, and continue to reside, with the Welsh Assembly and that any powers to make subordinate legislation which the Welsh Assembly may in the future choose to grant to Welsh Ministers will be, and necessarily must be, on exactly the same footing as the power vested in English Ministers to make subordinate legislation; in other words, a power to lay secondary legislation that is specific and explicit in the way with which we are all familiar.
	I hope that she can give me that reassurance and that she will also understand why I have felt it right to labour these issues somewhat. I say again that I am in no way arguing against further devolution to Wales. I am simply seeking clarification of the extent of that devolution as embodied in the clause and an ambiguous explanation of where the powers granted in the clause are eventually to reside. I beg to move.

Baroness Royall of Blaisdon: My Lords, I am grateful to the noble Earl for his understanding and for his wish for further clarification of the powers being vested in the National Assembly for Wales. I trust that I can give him the necessary reassurance.
	The Government of Wales Bill provides for the conversion of "framework powers", as mentioned by the noble Earl, into enhanced legislative competence, which in this case would enable the Assembly to legislate by measure in relation to NHS redress in Wales. The conversion process is scheduled to take place around the time other provisions in the Government of Wales Bill, which replace the current Assembly with a separate executive and legislature, are implemented after the next Assembly elections in May 2007. To seek a framework power now is entirely consistent with the policy set out in the White Paper for a parliamentary Bill such as this one to make broader provision in respect of Wales. I emphasise again that these powers are being conferred on a democratically elected body with its own rigorous scrutiny procedures.
	Paragraph 3.12 of the White Paper states that,
	"legislation made by the Assembly is subject to scrutiny by Assembly Members using procedures at least as rigorous as those available to Members of Parliament".
	If the Assembly were to use its Clause 17 regulation-making powers prior to the clause being converted into enhanced legislative competence of the new Assembly around May 2007, the Assembly's existing procedures for dealing with subordinate legislation, involving consultation, scrutiny and debate and the opportunity to amend proposals, will apply.
	It is also important to recognise that a considerable degree of discussion of the policies concerned takes place in its subject committees before the draft regulations themselves are scrutinised by the Assembly. Once the framework power is converted into enhanced legislative competence of the new Assembly as the legislature, the Assembly will be able to exercise the converted enhanced legislative powers relating to NHS redress by way of Assembly measures. Those broad legislative powers will rest with the Assembly. Only the Assembly will be able to make measures and these, too, will be subject to rigorous scrutiny.
	The Government of Wales Bill makes provision for the procedure that must be followed in order to enact an Assembly measure. This follows the equivalent provision under the Scotland Act.
	I hope that I have been able to reassure the noble Earl that the framework power is legitimate, proportionate and founded soundly on democratic principles of scrutiny and debate by a democratically elected Assembly and that he will therefore feel able to withdraw his amendment.

Earl Howe: My Lords, I am grateful for that helpful reply. My mind is now at rest but perhaps I could make doubly sure. If I have understood the Minister correctly, she has made a distinction between the broad power contained in this clause and a delegated power that might be contained in primary legislation, which could in future allow Welsh Ministers to lay detailed subordinate legislation before the Assembly of the kind with which we are familiar at Westminster. If that is the case I have no problem. The enhanced legislative competence to be granted to the Assembly under the Government of Wales Bill is, in layman's language, a power to make primary legislation. In Wales, as the Minister told us, legislation of this kind will be known officially as measures. The framework power in Clause 17 may in due course become a measure, but it will continue to be exercisable by the legislature as a whole—that is the key point—not by Ministers or the executive. As a separate issue as I understand it, a measure such as this may in turn, if the Assembly so decides, confer a power on Welsh Ministers to make subordinate legislation on matters relating, say, to implementation.
	I hope that I have got this right. It is somewhat complicated, at least for the uninitiated. If I have summarised correctly, I trust that if nothing else this short debate will have served to guide Members of another place when in due course this Bill receives their consideration. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 18 [Interpretation]:

Baroness Royall of Blaisdon: moved Amendment No. 51:
	Page 10, leave out lines 9 and 10.
	On Question, amendment agreed to.

Health Bill

Brought from the Commons; read a first time, and ordered to be printed.

Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2006

Lord Bassam of Brighton: rose to move, That the draft order laid before the House on 2 February be approved [17th Report from the Joint Committee and 23rd Report from the Merits Committee].

Lord Bassam of Brighton: My Lords, the Prevention of Terrorism Act 2005 was introduced last year in recognition of our need to be able to tackle the threat posed to national security by individuals that we could neither prosecute nor deport. The Government's response to the Law Lords' ruling on the Anti-terrorism, Crime and Security Act Part IV powers was the Prevention of Terrorism Act, which introduced control orders. Control orders enable tailored obligations to be placed on an individual to protect the public from the risk of terrorism. The Prevention of Terrorism Act came into force on 11 March 2005.
	The threat posed to the life of the nation by terrorism and the consequences of terrorism is a subject that has necessarily occupied this House on too many occasions. The tragic events of last July brought home to everyone that this is a very real and continuing threat. The UK Government must continue to tackle terrorism. Control orders have a vital role to play alongside other existing powers and the new measures contained in the Terrorism Bill, which was debated earlier in the other place.
	My right honourable friend the Home Secretary set out in his Statement to the other place on 2 February why he thought the powers were necessary and why we were seeking to renew these powers for a further 12 months. The report of the noble Lord, Lord Carlile of Berriew, on the operation of the 2005 Act was laid on the same day.
	It is in accordance with Section 13 of the 2005 Act that today's renewal debate is taking place. Section 13 provides that the powers contained in the 2005 Act relating to control orders will automatically lapse after one year unless renewed by order subject to the affirmative resolution in both Houses of Parliament.
	When the Prevention of Terrorism Act was going through Parliament we gave an undertaking that we would provide the opportunity for legislative change. My right honourable friend the Home Secretary outlined in his Statement on 2 February how we would take this forward and his proposals for the development of a draft Bill to be published in the first half of 2007 for pre-legislative scrutiny.
	We would then seek to introduce the legislation later that year. This would provide the opportunity to make legislative changes to the 2005 Act—if that was thought necessary—once the processes in the Act had been through a full cycle and we had the benefit of a further report from the noble Lord, Lord Carlile of Berriew, on the operation of the Act.
	I turn to the specific need for the powers. We face a continuing threat from terrorists and terrorism-related activity. Prosecution is and will always remain the Government's preferred course of action in dealing with individuals suspected of terrorism and priority will continue to be given to prosecution. But prosecution is not always possible for a variety of reasons. There may be insufficient admissible evidence, an overriding need to protect sensitive sources and techniques, or other reasons why a prosecution may not necessarily be in the public interest. Deportation is also an option for foreign nationals since removal can provide alternative means of disrupting their activity and reducing the threat to national security. But again this is not always possible, although we have made a considerable amount of progress in agreeing memoranda of understanding with a number of countries which we believe will provide a means by which individuals can safely be returned to their countries of origin.
	The Terrorism Bill currently before Parliament will introduce some new offences, including the offence of acts preparatory to terrorism. But there will remain a comparatively small number of cases where we are unable to prosecute, but where individuals pose a very real terrorist threat. In these circumstances, it is vital that the Government and the law enforcement agencies are able to act to reduce the risk that such individuals pose. The report of the noble Lord, Lord Carlile of Berriew, provided support for this view. Paragraph 61 states:
	"As a last resort (only), in my view the control order system as operated currently in its non-derogating form is a justifiable and proportional safety valve for the proper protection of civil society".
	Once again I want to take the opportunity to thank the noble Lord, who conducted his analysis with great care and attention. I should also like to thank the Joint Committee on Human Rights for its informative report and detailed reflection on the legislation and its operation. These contributions will be invaluable in informing the House in our consideration of these important issues.
	Sections 1 to 9 of the Prevention of Terrorism Act 2005 provide for the making of control orders. These are preventive orders that enable one or more obligations to be placed upon individuals that are designed to prevent, restrict or disrupt their involvement in terrorism-related activity. They can be applied to any individual, whether a United Kingdom or foreign national, where the Secretary of State has reasonable grounds for suspecting that the individual is or has been involved in terrorist activity and he considers it necessary for the purposes of protecting members of the public from the risk of terrorism. The obligations can be tailored to tackle particular forms of terrorist activity on a case-by-case basis. Any breach of the obligations in a control order without reasonable excuse is a criminal offence punishable with a prison sentence of up to five years and/or an unlimited fine.
	The Act makes provision for two types of order—derogating control orders and non-derogating control orders. The distinction between the two is that a derogation will be required if the obligations either individually or in total amounted to a deprivation of liberty within the meaning of Article 5 of the European Convention on Human Rights. We have not sought to make any derogating control orders. For non-derogating control orders the Secretary of State has to apply to the court for permission to make an order. There is provision in the Act, in the case of urgency, for the Secretary of State to make a control order. This must then be referred immediately to the court. The court must then begin its consideration of the case within seven days. Once a control order is made, an automatic review process is triggered. This judicial review of the Secretary of State's decision provides independent judicial scrutiny.
	Control orders have a maximum duration of 12 months. They can then be renewed by the Secretary of State, but this provides for a separate right of appeal. An individual may also apply to the court for the order to be revoked or an obligation to be modified where there is a change in circumstances, again with separate rights of appeal. The Act provides full judicial oversight and rights of appeal. Additionally, there are other reviewing and reporting requirements, such as the independent review in the form of the annual report of the noble Lord, Lord Carlile of Berriew, while the Secretary of State has to make three-monthly reports to Parliament on the exercise of his powers.
	There is a delicate balance to strike between safeguarding society and safeguarding the rights of the individual. As I have outlined, a number of safeguards are set out in the Act, and the renewal debates today both here and in the other place are a further requirement of the Act. Renewal requires an affirmative resolution in both Houses. These debates give honourable Members and noble Lords an opportunity to consider what is said in the report of the noble Lord, Lord Carlile of Berriew, and the merits of control orders more generally.
	The noble Lord has made some important recommendations in relation to improving the operation of the control order regime, including developing a procedure to monitor closely the necessity and proportionality of control order obligations and for the Government to provide fuller information as to why a prosecution cannot be brought instead of a control order. My right honourable friend the Home Secretary has welcomed the noble Lord's recommendations and explained that he will need to consider these once he has consulted the Intelligence Services Commissioner and the Director General of the Security Service, as required by the Act.
	In relation to the first of the two main recommendations, we agree with the noble Lord, Lord Carlile. While a number of internal mechanisms are already in place to review control orders, we accept that there is scope for an additional review of the obligations throughout a control order's life cycle, and we are discussing with stakeholders how best to achieve this. On the second recommendation, for the police to provide more information on why a prosecution is not possible, I think we all acknowledge the soundness of the principle here and we undertake to examine further with stakeholders how this might work in practice.
	I turn to the specific working of the draft order before the House. Without the order the power to make control orders will lapse at midnight on 10 March 2006. The effect of the order is to continue it in force until 10 March 2007. It requires approval by both Houses of Parliament. It is the Government's strong belief that control orders are an essential element of the range of measures that are necessary to address the continuing threat posed by terrorism. This belief is supported by the noble Lord, Lord Carlile of Berriew, in his report to the House on the first nine months of the operation of the prevention of terrorism legislation. In his report the noble Lord pointed out:
	"The nature of the activities of which I have seen information is sufficiently alarming for me to re-emphasise, as I have in other reports, the real and present danger of shocking terrorism acts involving suicide bombings . . . further suicide bombings in the United Kingdom must be expected and the target unpredictable".
	Those are chilling words and it is crucial that we never underestimate the threat we now face. Control orders are one of a number of options that the Government are employing to counter the very real threat of terrorism. They have an essential role to play both in countering the threat and contributing to a more hostile environment for terrorists to operate in.
	The Government's role, first and foremost, must be to protect the general public. Control orders are helping to achieve this while maintaining the necessary safeguards to protect individual rights. It is with this very much in mind that I commend the order to the House. I beg to move.
	Moved, That the order laid before the House on 2 February be approved [17th Report from the Joint Committee and 23rd Report from the Merits Committee].—(Lord Bassam of Brighton.)

Lord Thomas of Gresford: rose to move, as an amendment to the above Motion, at end to insert, "but this House regrets that the safeguards against misuse of the powers conferred by the Act are inadequate given the need for compliance with the obligations of the Human Rights Act 1998".

Lord Thomas of Gresford: My Lords, the noble Lord, Lord Bassam, referred to the case before the Judicial Committee of this House in December 2004 which concerned the nine foreign nationals who were being detained in Belmarsh prison without trial. The Judicial Committee held that the powers under which they were held, pursuant to the Anti-terrorism, Crime and Security Act 2001, were a serious breach of the European Convention on Human Rights. So the Prevention of Terrorism Act was rushed through in some two and a half weeks of February and March last year. Many noble Lords will remember our disputes at the time.
	We agreed to co-operate in finding appropriate stopgap measures subject to there being appropriate safeguards. In our debate on 10 March last year, when the Commons amendments came back to this House, I stated that,
	"we agree that there is a serious terrorist threat. We agree that the principal means of reducing that threat is by criminal prosecutions brought against a suspect in the regular criminal courts"—
	a point echoed today by the noble Lord, Lord Bassam. I continued:
	"We agree that there will still be a small number of cases in which there may be insufficient evidence for a prosecution, yet a means of control, a control order, is appropriate, imposing stringent conditions".—[Official Report, 10/3/05; col. 864.]
	It was in the light of that—agreeing in principle to control orders but looking for safeguards—that I proposed amendments to those clauses of the Bill dealing with control orders. The amendments were intended to be constructive; I thought that they would help the Government to avoid obvious breaches of the ECHR. We sought to ensure that the decision to improve a control order was not an arbitrary decision of the executive, in the shape of the Home Secretary, but a judicial decision, made in accordance with due process and with necessary safeguards and guarantees against injustice.
	I argued that it was wrong to make an order based merely on the reasonable suspicion of the Home Secretary that an individual was involved in terrorism. I suggested that that was far too weak a basis on which to put a person on house arrest. We were saying that the standard of proof of such involvement should at least be on a balance of probabilities. I also put forward the proposal that the chief of police in the relevant area or the Director of Public Prosecutions, whichever was the more appropriate, should provide a certificate stating that no probability of a prosecution existed. I heard the noble Lord, Lord Bassam, say today that the Government are still investigating that a year later, but at the time they opposed the suggestion root and branch.
	So the amendments I put forward on behalf of these Benches were rejected by the Government. Regarding the burden of proof, the noble and learned Lord the Lord Chancellor said that the Home Secretary was engaged in assessing risk of involvement in terrorism and that introducing the need to establish such involvement on a balance of probabilities would frustrate that policy. But he made a concession on judicial control, as your Lordships will recall: the Home Secretary would have to bring the making of an order before a court. The weakness of the procedure, which we pointed out at the time and continue to maintain, was that the judge before whom the order was brought would not be permitted to determine the merits of the actual making of the order. Whether it is justified or not, all the judge can do is see that the Home Secretary has followed the right procedures.
	We were anxious, along with those on the Conservative Benches, to emphasise the temporary nature of control orders. However, the proposal of a sunset clause, made by the Conservatives and supported by us, was rejected in favour of an annual review. The noble and learned Lord the Lord Chancellor said about that:
	"We believe that an annual renewal provision, which allows both Houses of Parliament every year to debate and not to approve the Bill, is an appropriate way to deal with it".—[Official Report, 10/3/05; col. 871.]
	So instead of seeing this legislation come to an end—and, with it, control orders—we have an annual review. That is why we are here tonight. But it was always intended that by now the stopgap measures of control orders would have been reviewed, and, if necessary, revised or replaced. As part of the final package that allowed the Bill finally to go through after ping-ponging about, the Home Secretary made the commitment to which the Minister has referred, that he would produce a more comprehensive draft counter-terrorism Bill in the late autumn of 2005 for pre-legislative scrutiny, to be followed by a substantive Bill now, in the spring of 2006.
	Following the events of 7 July, however, and by agreement between the three parties, that undertaking was renegotiated. There was an agreement that the new offences, which we from these Benches have supported in the current Terrorism Bill—namely, the acts preparatory to terrorism and encouragement to terrorism—should be addressed at once and that the question of control orders should be decoupled with a view to a further Bill in the early part of this year. However, on 2 February—this month—the Home Secretary said, unilaterally this time and not by agreement between the parties, that he favoured a further rethink. He revised the timetable, with draft legislation proposed for the spring of 2007 and a Bill that could not come into effect until 2008. Last year we were discussing control orders in the context that the measure would last only a year and that there would be an annual review instead of a sunset clause, because we would agree a timetable to look at it again, but that has not been carried out. That is the context in which we are asked tonight to renew the 2005 Act.
	The Joint Committee on Human Rights, in paragraph 12 of the report published yesterday, to which the Minister has referred, says:
	"the effect of the Home Secretary exercising his power to renew the Prevention of Terrorism Act, rather than to bring forward a Bill, is significantly to reduce the opportunity for parliamentary scrutiny and debate of the control orders regime".
	There is just one shot at it—tonight—as opposed to the procedures if a fresh Bill were brought forward. In particular, the committee pointed out that there was no way in which the legislation could be amended to reflect concerns about its actual operation, including its compatibility with human rights standards.
	In its reports, the Joint Committee has echoed and underlined the concerns that I expressed on behalf of these Benches last March. For example, it says at paragraph 68 of the report:
	"We agree with the view expressed by the European Commissioner of Human Rights, that Article 6 ECHR properly requires that non-derogating control orders should initially be made not by the executive but by the judiciary".
	As I have told your Lordships, that was the point I was seeking to make with one of my amendments. The committee goes on:
	"We also consider that our own constitutional traditions of due process, and of the separation of powers between the executive and the judiciary, requires no less".
	No doubt that last sentence was put in for those for whom the name of Europe always sends a shiver down their spine. It is part of our constitutional traditions that the judiciary should make these decisions.
	On the issue of proof of involvement in terrorism—another matter that we put forward—the committee has rejected the Home Office's argument that the Secretary of State was merely concerned to assess risk or evaluate intelligence. It points out that the threshold question for the exercise of the powers is pre-eminently factual. Has the individual the Home Secretary is considering been involved in terrorism-related activity? That is not a question of assessing risk; first of all it has to be established factually that he is involved in such activity. The committee concluded that the test of reasonable suspicion in the Act was set at too low a level and that a test of the balance of probabilities would be appropriate.
	The committee had many other criticisms about the special advocates procedure, which denies to an individual knowledge of the evidence against him and gives him no opportunity to test or challenge by way of cross-examination any witness against him. But its strongest criticisms are reserved for the way in which standard conditions are imposed upon those who are subject to control orders. The idea had been that a particular person who was seen to be a danger would have a control order imposed that would be tailored specifically to him. It is interesting that annexe 2 to the first report on the Prevention of Terrorism Act of my noble friend Lord Carlile, to which the Minister has also referred, sets out a pro forma of conditions for a control order, drawn up by the Home Office. Fill in the blanks. The pro forma contains gems; condition 5(b) says:
	"You shall not . . . attend any pre-arranged meetings or gatherings (other than attending, but not leading, group prayers at a mosque)",
	Condition 10 says:
	"You shall only attend one mosque of your choosing subject to prior approval from the Home Office before your . . . visit".
	There is no doubt at which section of the community the control orders have been aimed.
	My noble friend said in his report that the obligations of these control orders are extremely restrictive, and your Lordships can find his assessment of those obligations in that report. The Joint Committee goes further. Having considered all the evidence, it concludes that there is a very high risk that those placed under control orders suffer inhuman and degrading treatment, contrary to Article 3 of the European convention.
	About the regime as a whole, the Joint Committee says in paragraph 76:
	"In the context of the control order regime we find it difficult to see how a procedure in which a person can be deprived of his liberty without having any opportunity to rebut the basis of the allegations against them, can be said to be compatible with the right to a fair trial in Article 6(1), the equality of arms inherent in that guarantee, the right of access to a court to contest the lawfulness of their detention in Article 5(4), the presumption of innocence in Article 6(2), the right to examine witnesses in Article 6(3), or"—
	it adds, for those who do not like the European convention—
	"the most basic principles of a fair hearing and due process long recognised as fundamental by English law".
	This is a huge indictment of the Prevention of Terrorism Act—and it was foreseen. The Government were warned, from these Benches, from the Conservative Benches and from the Cross Benches, that their Act would offend against the convention. By failing to carry out their undertaking to revise the Prevention of Terrorism Act, which was part of the deal to allow the Bill to go through in the first place, the Government must now simply wait—inevitably and ignominiously for them, as happened in December 2004 with the Belmarsh decision—for the courts to hold the Act to be in breach of the European convention. I have no doubt that we will then have another sustained attack upon lawyers and upon the judiciary, which is the hallmark of the present Home Secretary whenever he is in a tight corner.
	That is why this non-fatal amendment has been brought forward. I urge the House to pass it. It will warn the Government to get their house in order, to comply with the undertakings that they have given and to pass legislation that complies with the standards of a civilised legal system and with the international requirements of human rights. I beg to move.

Lord Lloyd of Berwick: My Lords, I support the amendment of the noble Lord. Most of those who were present during that long night of 10 to 11 March 2005 will remember in particular the speech of the noble Baroness, Lady Hayman. She made the point that the annual renewal of the 2005 Act by order was not the way forward. She had two reasons: first, the importance of the subject matter of the Bill, affecting as it does the liberty of the subject; but, secondly, the inordinate haste with which that Bill was pushed through Parliament.
	The noble Baroness therefore proposed a sunset clause, to take effect on 31 March 2006, the consequence of which would have been that the Act would lapse on that day unless renewed by primary legislation. Her amendment to that effect was carried by 205 to 100—a huge majority. However, the Prime Minister had indicated that he was against a sunset clause, so when the Lords amendment went to the Commons it was rejected. However, at 11.12 pm, this House voted again to have a sunset clause, this time by 192 to 107. This House did so again at 5.43 am, by 164 to 96, and yet again at 12.56 pm the next day, by 194 to 123. A more convincing expression of the view of this House would be hard to imagine.
	The House then adjourned until 6.30 pm on 11 March. In the mean time, the parties were able to reach an agreement. That agreement was announced by the Lord Chancellor. It is set out in the Hansard for 10 March—part 2—at col. 1058. The agreement was that this House would have an opportunity to review the 2005 Act in the spring of this year, after the noble Lord, Lord Carlile, had published his report on the operation of the Act. The whole object was that we in this House should have an opportunity of reviewing the 2005 Act and of amending it, if necessary, before being asked to renew it. That, one might think, was reasonable enough.
	That was not all, however. In July 2005, the Home Secretary repeated his undertaking that he would return to control orders in the spring of this year. Yet, on 2 February, the day the noble Lord, Lord Carlile, published his report, the Home Secretary announced that the 2005 Act would not be reviewed in spring after all, but would instead be renewed by order on 15 February, which is of course today. The review promised for the spring of this year would not now take place until the end of 2007. That Statement by the Home Secretary was one of great importance, but for some reason—which I have not been able to find out—it was never repeated in this House, which is why it came as quite a surprise to many of us. I suggest to the House that the course that is now proposed is a clear departure from what was agreed on 11 March 2005. It was on the basis of that agreement that this House let the 2005 Bill go through. It is also a clear departure from the undertaking given by the Home Secretary in July that he would return to control orders in the spring.
	The Home Secretary gave three reasons why we are not to have the opportunity of reviewing the 2005 Act now. The first, he said, was that it would be premature, because the validity of control orders had not yet been tested in the courts. That presumably means that we must wait until the first case reaches the House of Lords. In any event, that difficulty must have been appreciated when the Home Secretary gave his undertaking in 2005. Secondly, he said that we must wait until the noble Lord, Lord Carlile, has completed his review of the current Terrorism Bill and produced a new definition of "terrorism". What the relevance of that would be is entirely beyond me. Thirdly, he said that the current legislation is in a mess and needs to be consolidated. I entirely agree with that, and the reason is not far to see.
	None of those reasons explains why a short Bill could not have been introduced so that the 2005 Act could be renewed by primary legislation instead of by order and so that we could have had the opportunity promised to review the Act now. That was something which the Home Secretary did at least consider, according to his Statement, yet he rejected it for the three reasons which I have given. It is all the more important that we should have had that opportunity in view of two things: first, the facts now revealed by the Carlile report; and, secondly, the view of the Joint Committee on Human Rights, described by the noble Lord, Lord Bassam, in a marvellous understatement, as "informative". I describe it as damning, because damning is what it is.
	The fact is that nine men are currently being detained pending deportation with no idea when a memorandum of agreement may be reached with the countries to which they are supposed to be deported. Of those nine, four have been granted bail on very severe restrictions, amounting in all probability to deprivation of liberty. Another nine are subject to control orders, described by the noble Lord, Lord Carlile, as extremely restrictive. The Joint Committee on Human Rights correctly pointed out that, whereas a single restriction may not amount to a deprivation of liberty, a number of restrictions cumulatively may well do so. That is the view which it has formed about those currently subject to control orders. I will read one short paragraph—paragraph 38—of its 12th report, which states:
	"In our view, those obligations are so restrictive of liberty as to amount to a deprivation of liberty for the purposes of Article 5(1) ECHR. It therefore seems to us that the control order legislation itself is such as to make it likely that the power to impose non-derogating control orders will be exercised in a way which is incompatible with Article 5(1) in the absence of a derogation from that Article".
	That was exactly my view when the Bill was going through this House and that is why I have always opposed control orders. But it is now too late to ask for a review of this legislation; we can do nothing but renew it. Meanwhile, the nine who are currently detained must presumably wait until the winter of 2007 for the legislation under which they are currently being detained—which may well be contrary to the Human Rights Act—to be properly reviewed by Parliament. In the interval, their only hope is to appeal. I regard that as profoundly unsatisfactory.

Baroness Kennedy of The Shaws: My Lords, I too support the amendment and echo what has just been said by the noble and learned Lord, Lord Lloyd. It is most unsatisfactory that we do not have the opportunity to debate such serious erosions of liberty. I thank the noble Lord and the noble and learned Lord who described in detail the way in which this legislation was debated with such concern a year ago. They described the concern that was expressed in this House about what it meant for us to pass legislation that did not comply with our great traditions and which flew in the face of international human rights. For us to do that it was crucially important that opportunities were provided to ensure that we did not slide complacently into an acceptance of the unacceptable. For us to be placed in a situation today where we are not able to do anything and where there is no opportunity for us to remind the nation and our people why liberty matters and why this is such an affront is something of concern, I hope, to all of us.
	This House was absolutely at its best a year ago. While people may in many ways have supported aspects of that legislation, the nation admired the fact that the House stood up to pressure to push through legislation without the appropriate level of debate on a matter as serious as this. Unfortunately, one can be left only with a feeling that this House is being slighted in what it was calling for at that time, and that that also flies in the face of our democratic traditions. Not only are we seeing the rule of law undermined but we also are seeing democracy undermined because debate is absolutely at the heart of our democratic processes.
	I want to remind people that having control orders means that on the lowest standard of proof—merely on suspicion—we will take away many of the things which we all hold dear. Opportunities to be with others, to go out of one's home, to take the air will be limited considerably and, as has been described, when put together, some of those controls on behaviour inevitably mean a deprivation of liberty. Further, there is no access by the accused person—the person suspected—to the evidence. Their own lawyers do not have access to the evidence, which is the suspicion on which the Home Secretary bases his decision to have control orders put into effect.
	The special advocate is something that we really should have the opportunity to debate again in this House. To call such a person—albeit someone skilled and a member of my own profession—an advocate is a denial of what the role of advocacy is all about. The whole purpose of advocacy is that on behalf of your client you are able to contest the allegation made and to do it acting as—if you like—the spokesperson for that person and to challenge evidence in a way that they would do themselves were they able to and versed in the law. The special advocate has no such possibility. Having had access to the evidence, the special advocate is denied the opportunity of speaking with the person who is going to be subject to the control order. To call such a lawyer an advocate for the person is a corruption of language as we know and understand it within our system of law.
	I am deeply saddened by the way that this has developed. Like others, I hope that we have the opportunity to express our view by way of a vote. I do not know whether that is intended but I would welcome a Division on this issue.

Lord Plant of Highfield: My Lords, although critical of control orders during the debates on the Bill last year, I am not opposed to them in principle, as I said in my Second Reading speech then. They are potentially a constructive way of dealing with a problem where the Government are caught between the Belmarsh judgment, the difficulty or impossibility of deportation because of the threat of death or torture and their own reluctance to prosecute by allowing intercept evidence. On that last point—which has been raised a few times in the House since last year's Bill, particularly by the noble and learned Lord, Lord Lloyd of Berwick—I have an open mind. The noble Baroness, Lady Ramsay of Cartvale, is very knowledgeable about this and her arguments are very powerful but I am not entirely convinced by them; I still have an open mind on the matter. I hope that it will be possible—in time at least—to allow such evidence. Given the circumstances, I am not utterly opposed to control orders but I want to make them as compliant as possible with human rights and civil liberties.
	Of course, most people will say that we have to get a proper balance between security and liberty, and of course we have. I am as much concerned with security as anybody else. I use public transport in London four or five days a week and I almost never take a taxi, as is true of the vast majority of Londoners. But while previously words like "security" and "liberty" could be bandied about and given more or less persuasive definitions to fit one's own point of view, this is no longer the case following the passage of the Human Rights Act and the incorporation of most of the ECHR. Now liberty and rights have a much more formal and in a sense objective basis, and a much more structured set of interpretations of these terms are found in the judgments of the domestic courts and the Strasbourg court. We are now like Ulysses and the sirens; we have chosen to bind ourselves in good times and in bad to a set of basic rights and liberties, to avoid the siren voices inviting us to abjure them. That was the will of the UK Parliament, the Labour Government and the Labour manifesto of 1997. Control orders have to be made as compliant as possible with this different legal order, which the Government have chosen to set up.
	After modification, as has been explained, the Act was passed last year. I am pleased that the noble Lord, Lord Carlile of Berriew, has confirmed that the Home Secretary has exercised his powers under the Act judiciously, fairly and scrupulously. That is what I would expect from my right honourable friend. Despite our disagreements, I have always admired his clarity of mind and straightforwardness, and it is good to have that reinforced by the report produced by the noble Lord, Lord Carlile. The problem remains of whether these powers, however sensibly exercised, are as human rights-compliant as they should be and as they could be. I accept that the judgment about this is not an exact science and that the legal advice given by the noble and learned Lord the Attorney-General has to be taken by the Government as definitive on it. However, Parliament has a right and a duty, it seems to me, to probe and if necessary to challenge the Government's position on compatibility and to seek explanations on why they think that these powers and the way in which they are exercised are compatible. That is what the Joint Committee on Human Rights, of which I am pleased to be a member, sees itself as doing.
	How rights-compliant is the present regime of control orders? In the report of the JCHR, as has been made clear, a large number of points were made, but I will concentrate on two. First, all the orders that have been made so far are non-derogating orders. If the obligations imposed on someone subject to an order add up to the deprivation of that person's liberty, that has to imply a derogation from Article 5. The question is whether the duties of non-derogating orders are sufficiently onerous to imply a deprivation of liberty. The approach of the European Court has been to say that this is not an all or nothing matter, as the noble and learned Lord, Lord Lloyd of Berwick, says, and that judgment has been echoed in the United Kingdom courts. The cumulative effect of the obligations can add up to the deprivation of liberty. It seems to me, and to the JCHR, that the effect of the orders as reported by the noble Lord, Lord Carlile, can in fact lead to the deprivation of liberty. They are supposed to be non-derogating orders, and yet their effect may well be the same as that of a derogating order. I am well aware that the Government will argue that short of what has come to be called house arrest we are talking about a restriction of liberty rather than a deprivation of liberty. However, I would have thought that if one looked at the details of the orders and their cumulative effect that would be a difficult judgment to sustain.
	Secondly, I am thankful that so far no derogating order has been made, although as I said I think that some of the non-derogating orders add up to the same thing or have the same effect. A derogating order does involve deprivation of liberty for an indefinite period and if adopted would require derogation. In those circumstances, the level of proof that the Home Secretary should satisfy himself about must be at the criminal level. The regime imposed on the individual would be the most onerous imaginable outside of imprisonment. On the principle that the higher the punishment the higher should be the threshold of evidence, the criminal standard should be employed by the Home Secretary in his deliberations and judgments. The legal answer to that point will be, "This is not a punishment; it is rather administrative action taken against someone". However, that is not how it will be seen. We would live in a Humpty Dumpty world—in which words would mean whatever I wanted them to mean—if a derogating order was not seen as the same thing as punishment.
	For those reasons, I am very unhappy with the idea of renewing the orders on the basis that they have been proposed to us tonight. However, I will not vote against the order if it comes to a vote. I could not do that because I have endorsed and contributed to the critique offered by the JCHR, and it would not be honourable for me now to vote in favour of my party and the Government's position, having endorsed that critique. However, I do not agree with the detailed wording of the amendments. It is not so much a matter of the safeguards in relation to the powers where the problem lies; the powers themselves are incompatible with human rights legislation.
	I have one question for the noble Lord, Lord Thomas of Gresford, which is of some interest to me. He said today and in the debates last year that judicial review would be entirely procedural. I wonder how far that fits in with the point made in paragraph 66 on page 21 of the report by the noble Lord, Lord Carlile:
	"In lay language, the decision of the Secretary of State will be upheld [by the administrative court] unless shown to be founded on a mistake of law"—
	which clearly fits into what he was saying—
	"or on a disproportionate assessment of the facts in their legal context, or perverse".
	It is rather obscure how a court could make those judgments without straying into the issue of the merits of the case. I am slightly mystified about how the noble Lord, Lord Carlile, could say that, if judicial review is entirely on the procedures. I fully sympathise with the critique of the order by noble Lord, Lord Thomas of Gresford, but I will abstain if it comes to a vote.

Baroness Stern: My Lords, I wish to make just a few remarks arising out of the report of the Joint Committee on Human Rights of which I am a member and which, thanks to the valiant efforts of the staff, was agreed late on Monday evening and published on Tuesday morning. I am glad that it is proving useful to so many noble Lords. I hope that eventually noble Lords will read the full report. I will confine myself to one aspect that particularly concerns me—the actual operation of the control orders and their effects on the people being controlled and on their family members.
	It appears from the report by the noble Lord, Lord Carlile, that most of the 18 people so far made subject to these orders have been put under what he has called "extremely restrictive obligations", which fall,
	"not very far short of house arrest",
	and,
	"involve deprivation of much of normal life".
	I remind noble Lords that the control order requirements include an 18-hour curfew; electronic tagging that is monitored twice a day by a private tagging company; a ban on the use of the garden; limitation on visitors and meetings to persons approved in advance by the Home Office; allowing the police to enter the house at any time to search and remove any item and to allow the installation of monitoring equipment; prohibitions on phones, mobile phones and Internet access; and restrictions on movement to within a defined area.
	The committee received evidence that has not been seen by the noble Lord, Lord Carlile, which bears out his conclusions about the severity of the control order regime and its problematic nature. We received evidence from a group of lawyers and civil liberty campaigners, CAMPACC, who are volunteers who visit people who are subject to control orders; although once they do visit such people it appears that they become classified as,
	"a known associate of a terror suspect".
	It said in evidence to our committee that it is almost impossible for people without a family home—that is, single people—to be released on a control order because no landlord will have them—I am sure that we find that understandable—and very few friends if any will take them in because the consequences for the friend are so extreme.
	There is probably more information available about the control order regime to which we do not have access. Here I am making a point about the visit of a delegation from the Council of Europe's Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. In July 2005, they sent a delegation which included a lawyer and a psychiatrist on a five-day visit to the UK. According to its press release, the delegation,
	"examined the practical operation of the Prevention of Terrorism Act 2005 and met various persons served with control orders".
	In November 2005, the same delegation came here again for six days. In addition to looking at the treatment and conditions of detention of certain people recently detained under the Immigration Act 1971, it also interviewed two persons under house arrest and met persons served with control orders under the Act that we are discussing today.
	In view of the importance of this evening's discussions, it seems strange that the Government have not informed Parliament whether the Committee for the Prevention of Torture made any immediate observations at the end of its visits in July and November 2005 in pursuance of Article 8, paragraph 5 of the European Convention for the Prevention of Torture. Noble Lords will know that the Committee for the Prevention of Torture makes immediate observations when it considers that a member state needs to take urgent action to prevent inhuman and degrading treatment, so it should be noted that we are being asked to make a decision on the renewal of this order in the absence of information that could be very relevant to the view that the House may take.
	Finally, the Joint Committee on Human Rights made some comments on the implications of these orders for the human rights of family members of those who are controlled. I shall summarise them briefly. The wives and children of controlled persons—I understand they are all men—are also subject to interference in their right to respect for private family life and home because of frequent access to their premises by outsiders without notice. That can include affront to religious and cultural sensitivities, particularly for the women in the household. In one part of our evidence we read that the women always went to bed fully clothed in case there was a visit from a monitor late in the evening. They are subject to restrictions on their use of telephones and access to the Internet; they have difficulty maintaining family connections and friendships because their houses are under surveillance; and all visitors have to be approved beforehand. They are living under constant anxiety that their family member may break the terms of the order by mistake or be rearrested.
	I appreciate the point made by the noble Baroness, Lady Kennedy, that it is important for us to express our views on this and I hope that we shall be able to vote on the amendment.

Baroness Hayman: My Lords, I am able to speak briefly because I agree with a great deal of what my noble friend Lord Plant of Highfield said. A year ago, my concern was not with the principle of whether control orders were part of the appropriate armoury for our society to defend itself against terrorism but with the process and the degree of scrutiny that Parliament was able to give in a situation where the highest order issues had to be considered and where the balances between liberty and security were very hard to strike.
	Like my noble friend, when I look at the amendment tabled by the noble Lord, Lord Thomas of Gresford, I am not drawn to support it for two reasons. One is pedantic or semantic—however one chooses to define it—as it prejudges the issues that, I feel, we need to debate. I have regrets about losing the ability to have that debate rather than about the content of the amendment.
	On the other basis, I am not drawn to non-fatal amendments. I prefer fatal amendments, if one is to vote on something. If we have a take-it-or-leave-it renewal order, that is the difficulty in which we will find ourselves tonight. It would be inappropriate and irresponsible to leave it and, therefore, we have to take it and accept that we are renewing it. It is disappointing that we are renewing without being in the position to consider a draft Bill that is comprehensive, and we now have a timetable that means that we shall probably be doing the same thing next year. It reinforces the difficulties that happen in such a situation.
	I cast no aspersions on my right honourable friend the Home Secretary. Since he made the commitments a year ago, we have had the horror of 7 July, and we have had cross-party talks about how best to deal with the situation, the need for more terrorism legislation and how the timetable has changed. Those are all absolutely understandable reasons, to which any Minister will respond. I reflect on the fact that we have to deal with this as parliamentarians and not as Ministers. Perhaps the reason why there was so much support at the time for a sunset clause rather than renewal was the recognition that "events, dear boy" can always intervene. Perhaps the only real defence is to be very tough as parliamentarians. I was not tough right through to the end, so it is mea culpa, as much as anything else.
	I end on a positive note. I welcome my noble friend's commitment to take up the suggestion of the noble Lord, Lord Carlile of Berriew, about reviewing the cases and ensuring, at regular intervals, that the restraints are the minimum necessary. We recommended that case management approach in the Newton committee with regard to the detainees, and I am grateful for the commitment that he has given tonight to do that with control orders.

Lord Kingsland: My Lords, at the climax of the great debates of March 2005, to which the noble and learned Lord, Lord Lloyd of Berwick, referred, the Home Secretary undertook to revisit control orders in primary legislation at the earliest possible moment after the publication of the report of the noble Lord, Lord Carlile. That has not happened. In a debate in another place, on 2 February this year, the Secretary of State explained why. Essentially, he said that he would meet his undertaking, not in 2006, but most probably in 2007. Meanwhile, he wanted another 12 months' grace. What has happened is precisely what so many of your Lordships feared in March last year.
	The noble Baroness, Lady Hayman, has extremely generously—rather unfairly to herself—said that she was not tough enough. That could equally be said of ourselves. One stage later than the noble Baroness, we took the view that the offer made by the Home Secretary in another place in all the circumstances ought, on balance, to be accepted. We were wrong. We ought to have been even tougher than we were. That is the situation that we face. We must decide whether or not to renew the order for another 12 months.
	The right honourable gentleman the Home Secretary was at his most emollient and constructive in the debate in another place on 2 February. He prayed in aid three reasons for asking for another year of grace. The first was that there are now, as I understand it—I know that the noble and learned Lord, Lord Lloyd of Berwick, is extremely pleased about this—constructive negotiations going on between the Government and the Opposition and, indeed, between the Government and its own security advisers about a way through the difficulties the Government see in allowing intercept evidence in court proceedings. The right honourable gentleman the Home Secretary referred to that in specific terms:
	"the Government are undertaking to find, if possible, a legal model that would provide the necessary safeguards to allow intercept material to be used as evidence".—[Official Report, Commons, 2/2/06; col. 479.]
	We on these Benches welcome that statement; but we also understand that, as the model is not yet in existence, the Government will need extra time to put it in place.
	A second reason why the right honourable gentleman wished to delay the matter was that the noble Lord, Lord Carlile of Berriew, was undertaking an intense study into the definition of "terrorism". The absence of a definition has to some degree blighted the progress of the Terrorism Bill in your Lordships' House. We therefore recognise that the Government will need time to absorb the conclusions of the noble Lord, Lord Carlile of Berriew, before coming forward with a definition worthy of inclusion in legislation.
	The right honourable gentleman also suggested a third reason and claimed support from the noble Lord, Lord Carlile of Berriew, in advancing it. It was that none of the current control order litigation had reached the point of judgment in the courts and that consequently we should wait and see what the courts said before reconsidering the position of control orders in our legislation.
	I beg to differ with the right honourable gentleman that that is a valid reason for waiting. Suppose that the courts find against the Government, especially if the basis for those findings discloses one or more breaches of the European Convention on Human Rights. In those circumstances, will the Government not be placed in exactly the same situation as in December 2004, following the Belmarsh decision? If your Lordships agree with that, it adds great weight to the observation of the noble Lord, Lord Thomas of Gresford, that the Government will find themselves in the most ignominious position. They are not leading the nation in finding the right solution but following the courts—institutions about which they have repeatedly expressed deep reservation. What an irony if that were to occur. Whatever the merits of the right honourable gentleman's observations about intercept evidence and the definition of terrorism, in my respectful submission, the argument that we should wait for the courts is quite unacceptable.
	Many of your Lordships have referred to the report of the Joint Committee on Human Rights. I pay tribute, as did the noble Baroness, Lady Stern, to all the work done to ensure that that report was before your Lordships' House tonight. It is worth quoting from the concluding paragraph of that report, which flowed from a detailed analysis of the compatibility of control orders with the European convention:
	"In light of the concerns expressed in this Report, we seriously question renewal without a proper opportunity for a parliamentary debate on whether a derogation from Articles 5(1), 5(4) and 6(1) ECHR is justifiable, that is, whether the extraordinary measures in the Prevention of Terrorism Act 2005, which the Government seeks to continue in force, are strictly required by the exigencies of the situation. It would be premature for us to express a view on that question. We merely conclude at this stage that we cannot endorse a renewal without a derogation and believe that Parliament should therefore be given an opportunity to debate and decide that question".
	We have not had an opportunity to debate the report in detail. We have only seen it for a day and a half, and tonight the Government are asking us to take a decision about the whole system of control orders.
	It is worth noting, however, that the Joint Committee's concerns went not just to one article in the convention but to a large number: to Article 5(1) and Article 5(4), which concern the access to courts and the adequacy of court procedure to ensure that those subject to control orders are given proper rights; to the fairness of trials under Article 6(1); as the noble Baroness, Lady Stern, explained, to the convention's provisions on family life; and finally, because only one of the 18 people subject to control orders is a British national, to whether or not there was also a breach of Article 14. That is indeed a rich jurisprudential tapestry; and your Lordships have not had the opportunity to consider it in any detail.
	However, I wish to draw your Lordships' attention in particular to one point in the Joint Committee's report. In the final sentence of paragraph 38, the Joint Committee states:
	"In our view, those obligations"—
	a reference to the obligations in the control orders—
	"are so restrictive of liberty as to amount to a deprivation of liberty for the purposes of Article 5(1) ECHR. It therefore seems to us that the control order legislation itself is such as to make it likely that the power to impose non-derogating control orders will be exercised in a way which is incompatible with Article 5(1) in the absence of a derogation from that Article".
	The noble Lord, Lord Carlile of Berriew, had something to say about that matter at paragraph 43 of his report, to which the noble Baroness, Lady Stern, referred. He is referring to the nine of the 18 who are still subject to control orders:
	"The obligations include an eighteen hour curfew, limitation of visitors and meetings to those persons approved by the Home Office, submission to searches, no cellular communications or internet, and a geographical restriction on travel. They fall not very far short of house arrest, and certainly inhibit normal life considerably".
	It is true that the noble Lord, Lord Carlile, said previously in relation to the decisions taken by the Secretary of State at, confusingly, paragraph 38 of his own report:
	"I would have reached the same decision as the Secretary of State in each case in which a control order has been made".
	The noble Lord was making that observation, of course, in the context of the particular law that had to be addressed by the Home Secretary and therefore not in the additional context of the human rights convention.
	Only nine of the 18 people initially subject to control orders are now subject to control orders. A further nine have been removed from the control order regime and incarcerated pending deportation. They are divided into two classes. One of the nine is a Jordanian and, if deported, will go back to Jordan. The Government have, as I understand it, signed a memorandum of understanding with Jordan. I have not seen the document, but I suppose that the Jordanian Government undertake not to breach Articles 2 and 3 of the European convention in relation to the treatment of that individual. No doubt the matter will be litigated in the courts, and we shall wait with interest to see what conclusion the courts reach about the viability of memorandums of understanding when signed.
	However, the other eight come from countries with which we have not yet concluded memorandums of understanding. Therefore, it follows, as night follows day, that it will be impossible to deport those individuals in the absence of such memorandums. Those people are incarcerated with no idea about how long they are going to be there. Is that compatible not only with the European Convention on Human Rights but with the sense of fairness that runs through our common law traditions? We have to ask ourselves those questions.
	I have one final observation, your Lordships will be relieved to hear. I go back to the point made so elegantly by the noble Baroness, Lady Hayman, in the opening stages of her speech. Control orders, while necessary in certain circumstances, are measures of last resort. What we all want to see is prosecution, not control orders. Every opportunity must be taken to ensure that we prosecute those individuals.
	A great battle took place during the debates of March 2005 over how the Government could guarantee that, in every control order case, the individual concerned was not capable of being subject to a prosecution in our criminal courts. We on these Benches pressed for an undertaking from the Director of Public Prosecutions that prosecution was impossible before the control order regime should become activated. The Government resisted that, in the end successfully, and substituted for our view that it should be the DPP who took the final decision the view that it should be the chief constable of the area concerned that should take the final decision.
	The noble Lord, Lord Carlile of Berriew, had something to say about this as well. At paragraph 58 of the report he said:
	"I have seen letters from chief officers of police in relation to each controlee certifying that there was no realistic prospect of prosecution. Little is given by way of reasons. Whilst I have no evidential basis for doubting the genuine nature of the section 8 exercise, in my view the letters provided by chief officers should give clear reasons for the conclusion that there is not evidence available that could realistically be used for the purposes of a terrorism prosecution".
	It is plain that the system put into operation by the Government in respect of chief constables and chief police officers is not working properly. I particularly ask the Minister to address that point in his remarks because it goes right to the core of the control order system. The control order system must be limited to cases where prosecution is simply not possible. Once it starts to encroach in the wrong direction over that line, we will, indeed, enter an extremely dangerous world. I look forward to the Minister's reply.

Lord Bassam of Brighton: My Lords, first, I thank all noble Lords who have made contributions to an intriguing and difficult debate. One has to accept it is a very difficult debate, but I start from the point—I am grateful that there now seems to be almost universal recognition of this—that we face a continuing threat from terrorism and terrorism-related activity. There must always, I would argue, be an acceptance that it is the role of government to tackle terrorism, to tackle it head on and to deal with the issues that flow from it. That is where we start from; and that is where, I think, we can have a point of agreement.
	It is also the Government's strong belief—a belief that has found support in your Lordships' House—that control orders have an essential role to play in countering the threat of terrorism and in contributing to a more hostile environment for terrorists to operate in. That view is shared by the independent reviewer of the legislation, the noble Lord, Lord Carlile of Berriew. He has been much quoted but is sadly absent from the Chamber this evening. I made it clear in my opening remarks that we would closely study the practical recommendations that the noble Lord, Lord Carlile, made in his report.
	That is where we start from. From that easy start, we begin to diverge in our analyses of the current situation and the import of where we are at the moment and how we have got there. I listened carefully to what the noble Lord, Lord Thomas of Gresford, had to say. His comments, particularly those rehearsing the history of where we were, I listened to more carefully than most. He, the noble and learned Lord, Lord Lloyd of Berwick, the noble Lord, Lord Kingsland, and others were critical of the fact that we will not have the opportunity, as they see it, to revisit the issue of control orders—rather than, as we are at the moment, looking at the renewal—and go back to first principles in the debate. The suggestion was powerfully made that in some way the Government had reneged on their commitment. I certainly accept that the situation has changed since we had those important, long fought-over debates last year when we considered the Prevention of Terrorism Act 2005.
	The noble Lord, Lord Thomas of Gresford, made the point that the undertaking the Government made has, in a sense, been renegotiated. He was right to make that point. Events, as my noble friend Lady Hayman made clear, have somewhat overtaken us. For that reason, we have had to review the situation. As has been said in your Lordships' House, the Home Secretary in his Statement of 2 February drew attention to the fact that we now have a report produced by the noble Lord, Lord Carlile, as an independent reviewer of the Act on its first nine months of operation. At that stage we did not believe that legislative changes were required. We did not believe that a purpose would be served by introducing further legislation at this stage. We preferred to have a different timetable, but a timetable that meant that we would consider a draft Bill in the spring of next year, and that Bill would be the subject of some pre-legislative scrutiny.
	That is a practical view that the Home Secretary has taken of his initial commitment. He also made the point that there had not been an opportunity for a complete cycle of control orders to be reviewed and that legal challenges brought by those who have been the subject of those control orders have yet to be completed. I agree that it would be premature, in those circumstances, to bring forward legislation in advance of that. It is right, too, that we consider the importance of the review of the Terrorism Act 2000 by the noble Lord, Lord Carlile, and his conducting of a review of the legal definition of terrorism. We think that that is probably a better, more coherent and cohesive way of looking at the subject, and it will provide Parliament with the opportunity in the fullness of time to have another look and to interrogate the issues.
	Much of the comment made by noble Lords in this debate focused on the report by the Joint Committee on Human Rights. We acknowledge that report as being important and will take careful note of what it has said. Noble Lords have drawn attention to particular points in that report. The noble Lord, Lord Kingsland, in particular, drew attention to Paragraph 38 and the issue of whether the non-derogating control orders were being operated in practice in a way that amounted to a deprivation of liberty and therefore required a derogation from Article 5(1) of the European Convention on Human Rights. We think that the existing control orders, with the more restrictive obligations referred to in the report of the noble Lord, Lord Carlile, were made with the permission of the court. The court did not consider that the orders amounted to derogating control orders, so we are not in agreement with that particular observation from the JCHR.
	We also take issue with the other assertion made in the report on whether the procedural protections are compatible with Article 5(4)—the right of access to a court to determine the lawfulness of detention and the right of a fair trial in determination of a criminal charge and a fair hearing in the determination of civil rights obligations under Article 6(1) of the European Convention on Human Rights and with the common-law right to a fair trial and hearing. We do not accept that control order proceedings amount to a criminal charge. They are civil proceedings with civil procedure rules, and those have been debated in both Houses of Parliament. We think that there is appropriate judicial oversight, provided for in the legislation. There is an automatic judicial review of the Home Secretary's decision. The review will be a full hearing before the High Court or a Court of Session. There are separate rules of court set out in the civil procedures that allow the court to hear both open and closed material. Control orders also have a maximum duration of 12 months. They can then be renewed by the Secretary of State, but this provides for a separate right of appeal. If a control order obligation is modified without the consent of the controlled person, that also gives rise to a right of appeal, and any individual may also apply to the court for an order to be revoked or an obligation to be modified where there is a change of circumstances.
	The noble Lord, Lord Kingsland, made particular reference to the committee's overall conclusions. We do not accept that any of the control orders that we have made impose obligations on individuals that amount to a deprivation of liberty. Therefore, we do not accept the point that they are derogating control orders, nor that a derogation is required. We have not sought to make a derogating control order, but were we to do so, derogation would have to be approved by both Houses of Parliament. Therefore we cannot accept their final conclusion in that regard.
	I heard what the noble Lord, Lord Kingsland, said about that. He cited the report of the noble Lord, Lord Carlile of Berriew, at paragraph 53. We certainly accept the seriousness of that observation but, in conclusion, it must be said that, although the noble Lord, Lord Carlile of Berriew, says that they fall not far short of house arrest, they do not, in the end, amount to house arrest. It is certainly true that they place rigorous conditions on the controlee in those circumstances.
	It is also worth dwelling on the report of the noble Lord, Lord Carlile. He makes important points about how the control order regime works. At paragraph 35—I think that is worth reading this into the record—he states:
	"As part of my function as independent reviewer, I task myself to replicate exactly the position of the Home Secretary at the initiation of a control order. I call for and am given access to the same files as were placed before the Secretary of State when he was asked to determine whether a control order should be made. These files include detailed summaries of evidence and intelligence material, as well as the draft Order and obligations. The summaries describe not only the activities alleged against the individual and the sources of information but also the context of those activities in a wider and very complex terrorism picture".
	At paragraph 38, to which reference has also been made, he states:
	"I would have reached the same decision as the Secretary of State in each case in which a control order has been made. He asks questions and certainly does not act as a mere cipher when the papers are placed before him. The process is rigorous and structured in an appropriate way, so that the decisions are very definitely those of the Home Secretary, not his officials".
	I think that the noble Lord, Lord Carlile of Berriew, is saying that the process is very rigorous. It is a process that has been taken very seriously by the Home Secretary. Yes, if you like, there is a deprivation of some liberties; that much is clear from reading the report and the way in which the draft control order— referred to as a pro forma—is set out. But that process is gone through with great seriousness because it needs to be and because the potential threat that may arise from that person being entirely at liberty is real and current, as the noble Lord, Lord Carlile, states in parts of his report.
	Other points were raised during the debate that I felt that I should respond to. The noble and learned Lord, Lord Lloyd of Berwick, asked why we were not bringing forward a short Bill to renew the 2005 Act. The noble Lord, Lord Carlile, made no recommendations regarding the operation of the control order system that require primary legislation. If the sole purpose of such a Bill was to renew the Act, today's order, which your Lordships are free to vote against, serves the same purpose.
	The noble and learned Lord, Lord Lloyd of Berwick, asked me a short question: why the Home Secretary's Statement on the important issue of why we could not have full consideration of the Bill was not repeated in your Lordships' House. Simply, that was because the opposition parties did not believe that it was essential for the Statement to be repeated. Statements are repeated in your Lordships' House essentially on request.
	The noble Baroness, Lady Stern, referred to the European Committee on the Prevention of Torture and recommendations that it may make. We understand that the ECPT will report in March of this year, but it has made no immediate recommendations to us, following its visit to us last July. I understand that, in November, it made one recommendation about an individual who is the subject of a control order, to which the Government are, of course, giving careful consideration, but it made no general observations to the way in which the control order regime worked.
	I think that I have covered most of the points raised. The noble Lord, Lord Kingsland, asked me about prosecutions. I entirely agree with the noble Lord that it would be greatly preferable if we could bring a prosecution in every case. The noble Lord, Lord Carlile of Berriew, made that point in his report, and we do not fundamentally disagree with it. But we must accept that there are circumstances—your Lordships' House has accepted the point in the past—in which it would not be appropriate to bring cases. The noble Lord, Lord Kingsland, made the point, as he has done before, as has the noble and learned Lord, Lord Lloyd of Berwick, that it was possible that more cases would be brought before the courts if telephone interceptions and material derived from them were part of evidence that could be fashioned into bringing a case. The noble Lord, Lord Carlile of Berriew, says this:
	"Although the availability of such evidence would be rare and possibly of limited use, I remain of my previously expressed view that it should be possible for it to be used and the Law should be amended to a limited extent to achieve that".
	As the noble Lord, Lord Kingsland, said, the Home Secretary is considering that, and with some seriousness.
	We accepted the other point made by the noble Lord, Lord Carlile of Berriew, about prosecutions. I referred to it in my opening remarks; perhaps the noble Lord missed it. On the police providing more information about why prosecutions were not possible, I said that we accepted and acknowledged the soundness of the principle, and we will examine carefully with stakeholders how that might work in practice. So the court may be provided with that level of explanation.
	I am grateful for the seriousness with which your Lordships' House has approached the matter. Clearly, the issue will need to be kept under very careful review. There are opportunities for both Houses of Parliament to do so. I am grateful for the debate and the quality of the contributions. Our overall role as government must first and foremost be to protect the general public. Whatever one thinks about control orders, how they operate and the difficulties with them, we believe that they are helping and making a major contribution to public protection. They do so while maintaining safeguards to protect the rights of individuals.
	With that very much in mind—we clearly respect individuals' rights, but we view the terrorist threat very seriously—I commend the order to your Lordships' House.

Lord Thomas of Gresford: My Lords, I am most grateful to the Minister for his careful reply to this debate, as I am to all noble Lords who have taken part in it. I was taken back by the noble and learned Lord, Lord Lloyd of Berwick, to the night of 10 and 11 March last year. I wondered to myself whether we missed all that sleep in vain as a result of the arrangements that were finally arrived at but which have not really been followed through.
	I also thank the noble Baroness, Lady Hayman. I remember that, even as the sun was rising, she was still pursuing her sunset clause. It was only in the final stages that she felt obliged to give up the struggle. Her Majesty's Official Opposition gave up the struggle the next time. We fought it out to the end, which is why we are here today—to seek to make this amendment.
	The noble Baroness, Lady Kennedy of The Shaws, reminded us, as always, of her deep devotion to the common law of this country and to the principles which she has always exhibited. We are very grateful for her support. We are also grateful for the support of the noble Lord, Lord Plant of Highfield. He asked me—the debate gives me an opportunity to reply—to explain the procedure in judicial review, which the noble Lord, Lord Carlile of Berriew, explains in paragraph 66:
	"In lay language, the decision of the Secretary of State will be upheld unless shown to be founded on a mistake of law, or on a disproportionate assessment of the facts in their legal context, or perverse".
	The first and last concepts are easily understood. The middle concept is: where an administrative decision is frequently attacked, did the Minister ask himself the right question? That is where it comes from. If one can establish that the Minister asked himself the wrong question, his decision may be set aside. The court approaches judicial review by saying, "Parliament has given it to the Minister to make that decision; I will not second-guess his decision. I will not make the decision myself on the merits; I will just see that he has followed the required procedures in the proper way".
	I am grateful to the noble Baroness, Lady Stern, for reminding us of the Joint Committee's findings about the inhibitions imposed by control orders on family life and the liberty of the subject of the order, to the extent that the committee was quite sure that it amounted to unusual punishment.
	I think it is appropriate that I should seek the opinion of the House on my amendment. It would not cause the order to fall. I took the criticism of the noble Baroness, Lady Hayman, on that, but I say to her that, if the Home Secretary on 2 February says, "You are going to decide this on 15 February", less than a fortnight ahead, at a time when the Joint Committee has had no opportunity to consider the matter and to report, it is not easy to get together the battalions we had on the night of 10 and 11 March, which she will remember so well. I hope that she will not oppose the amendment on that basis. I ask her to support it because the primary safeguard that was built into the Bill was derived from her attempt to get a sunset clause. It was negotiated that there would be an annual renewal, but that has not proved an adequate safeguard, and that is the purport of my amendment.

On Question, Whether the said amendment shall be agreed to?
	Their Lordships divided: Contents, 34; Not-Contents, 81.

Resolved in the negative, and amendment disagreed to accordingly.
	On Question, Motion agreed to.

Commissioner for Older People (Wales) Bill [HL]

Read a third time.
	Clause 2 [General functions]:

Lord Roberts of Conwy: moved Amendment No. 1:
	Page 1, line 16, leave out "only"

Lord Roberts of Conwy: My Lords, Amendments Nos. 1 and 2 seek to soften the line, break down the wall, that confines the commissioner and his exercise of powers to areas where the Assembly has functions; that is, devolved areas of government. Clause 2(2) sets that line firmly. Our Amendment No. 1 seeks to soften it. Why? The limitation on the commissioner's exercise of his functions to devolved areas only is unrealistic, as I believe we have all recognised in earlier discussions. Individual cases do not recognise departmental boundaries or fall neatly into devolved or non-devolved areas.
	It is clear from the nature of those functions, as described in subsection (1), that the commissioner will not be able, in practice, to draw a line that confines him to the devolved areas only. The Government appear to accept in Clause 2(3) that the commissioner may find himself in non-devolved areas. Therefore, provision is made that he may make representations to the Assembly on,
	"any matter relating to the interests of older people in Wales".
	It will then be for the Assembly to decide what action to take, if any: it could be a lengthy process or an urgent matter requiring immediate attention.
	It is that consideration of practical necessity that underlies our second amendment, which seeks to ensure that the commissioner has direct access to the relevant Secretary of State, if necessary. That would certainly be the case if there is urgency in the matter.
	The Minister will say that such changes as our amendments propose will blur the demarcation lines between devolved and non-devolved areas, between Assembly appointees responsible to that body and operating in specific areas, and civil servants employed by other departments of state. I understand the Government's concern and anxiety to prevent confusion, but they must recognise the realities on the ground—the real world in which the commissioner will operate—where there are no clear lines of demarcation. Individual cases can involve a variety of departments, some of which are responsible to the Assembly and some of which are responsible to the Westminster Parliament.
	The Government are wrong to specify the commissioner's "No Go" areas quite so firmly: they should allow some flexibility. Otherwise, there may be tension. The public simply will not understand why the commissioner can operate in one area, but not in another. This prescription seems to fly in the face of the Minister's wish, expressed at Report stage, that the commissioner should have,
	"freedom to choose when, in what instances, and how he will exercise his functions".—[Official Report, 9/11/05; col. 682.]
	He requires the latitude couched in our amendments to achieve that freedom. I beg to move.

Lord Thomas of Gresford: My Lords, we on these Benches support the amendments put forward by the noble Lord, Lord Roberts of Conwy. This is a familiar theme. I have spoken on many occasions on this topic in relation to the Children's Commissioner for Wales Bill and in relation to this Bill. I have yet to hear a full and satisfactory explanation of why the commissioner is prevented from promoting the awareness of the interests of older people in non-devolved matters. Those non-devolved matters contain the very issues which are of concern to old people—specifically, social security provision and so on. Those should be well within the purview of the commissioner.

Lord Prys-Davies: My Lords, I want to express my support for both of the amendments. The commissioner should be able to cross the boundary between the devolved and the non-devolved functions of government. As the noble Lord, Lord Thomas, has just said, we debated similar amendments when the Children's Commissioner for Wales Bill was before the House, but they were firmly rejected. I understand that that is still the position of the Government. However, I hope the day will come when both amendments will prevail.

Lord Elystan-Morgan: My Lords, I rise briefly to support the amendment. This is somewhat strange when we consider that the Assembly has specific powers in relation to devolved matters and is entitled to be concerned with a wider range of issues entirely outside those devolved functions. It is therefore wrong to cabin, crib and confine the commissioner to matters which are devolved. As has already been pointed out, there will be many non-devolved areas which have every possible bearing on the situation of older people in Wales.

Lord Evans of Temple Guiting: My Lords, I shall speak first to Amendment No. 1 before turning to Amendment No. 2, both of which are tabled in the names of the noble Lords, Lord Roberts of Conwy and Lord Luke. Amendment No. 1 would cast doubt on the restriction that the exercise of the commissioner's general function must be in the fields in which the Assembly has functions. As the noble Lord, Lord Thomas of Gresford, pointed out, this is an issue we have discussed at length. I have to say again, as I have said at every stage of the Bill, that this is the constitutional situation that currently exists. The Bill does not provide a vehicle for changing it and in our view it is not appropriate that it should. I bore myself by repeating that and I am sure I bore other noble Lords.
	As noble Lords are aware, the restriction is designed to give maximum clarity about the commissioner's role within the devolution settlement. Consequently, the Government cannot accept this amendment. It would remove the certainty in the Bill about the commissioner's remit in non-devolved matters. It might also put the commissioner in a difficult position and force him or her to try to navigate their own way around some very complex issues. I do not think that would be either desirable or helpful for older people in Wales. More broadly, this amendment is a variation on the theme which we have discussed many times and at length in Grand Committee and on Report. I hope that I have made the Government's policy perfectly clear and I have little intention of going over old ground again this evening. Suffice to say that the establishment of the commissioner and the functions of the office must be consistent with the existing constitutional settlement.
	Amendment No. 2 also seeks to chip away at the existing devolution arrangements. It would allow the commissioner to make representations directly to the Secretary of State with policy responsibility for the subject matter of the representation as well as to the Assembly. The Government of Wales Act makes specific provision for the Assembly to make representations about any matter affecting Wales. That must represent the proper constitutional route for representations. The commissioner must make his representations via the Assembly as the elected body with democratic responsibility for the people of Wales.
	The noble Lord, Lord Roberts of Conwy, acknowledged the logic of the Government's position on Report. He noted that the commissioner will be appointed and financed by the Assembly, and stated that,
	"it is understandable that this Bill should confine his functions and powers to areas in which the Assembly also has functions".—[Official Report, 9/11/05; col. 689.]
	The noble Lord may not agree with it, but he does understand it. I am sure he also understands that the Government will not budge on this matter. With that explanation, I hope he will feel able to withdraw his amendment.

Lord Roberts of Conwy: My Lords, I am grateful to noble Lords who expressed their support for these amendments, which I still maintain show the degree of flexibility that is to be required in practice so far as concerns the commissioner and his functions. They are very broad functions. They do not respect devolved areas, and neither do the individual cases that we know will confront him in real life, which will certainly involve both types of area. However, the Government feel strongly on this matter, as the Minister has indicated yet again, and it is unlikely that we will shift him on these points. We have done our best. Having done so, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 2 not moved.]

Lord Evans of Temple Guiting: moved Amendment No. 3:
	After Clause 8, insert the following new clause—
	"RESEARCH AND EDUCATIONAL ACTIVITIES
	(1) The Commissioner may, in connection with any of his functions—
	(a) undertake or commission research;
	(b) give assistance to another to undertake or commission research;
	(c) carry out or commission the carrying out of educational activities;
	(d) give assistance to another to carry out or commission the carrying out of educational activities.
	(2) In this section, "assistance" includes financial assistance."

Lord Evans of Temple Guiting: My Lords, I shall speak first to government Amendment No. 3 before turning to government Amendments Nos. 6, 14 and 17, all of which concern the commissioner's ability to undertake or commission research and educational activities. On Report, my noble friends Lord Prys-Davies and Lord Rowlands expressed clearly their wish to see provision made in the Bill for the commissioner to undertake research and educational activities. The Government's position was that the Bill as drafted already gave the commissioner the power to do so. However, we have listened carefully to the views put forward, and acknowledge the concern that there should be no uncertainty about the commissioner's powers to undertake such research. I have therefore tabled a new clause, which makes express provision for the commissioner to undertake, commission or provide assistance, including financial assistance, for research or educational activities in connection with any of his functions. Naturally, in those instances where the commissioner's functions are restricted to devolved fields, it is only appropriate that his power to undertake research and educational activities is similarly restricted.
	There are three areas of the Bill to which the need for such a restriction is pertinent: the examination of cases, the making of reports and the conferring of supplementary functions on the commissioner. These restrictions are dealt with by way of Amendments Nos. 6, 14 and 17 respectively. I beg to move.

Lord Prys-Davies: My Lords, I am extremely grateful to my noble friend for having tabled Amendment No. 3. On the other hand, I regret that the areas to be researched are restricted. They are important limitations. Nevertheless, Amendment No. 3 will be an important facility in the hands of the commissioner, and I am grateful to the Government for tabling the amendment.

On Question, amendment agreed to.
	Clause 9 [Examination of cases]:

Lord Thomas of Gresford: moved Amendment No. 4:
	Page 6, line 28, leave out "under" and insert "and powers under sections 2, 3, 5 and 8 of"

Lord Thomas of Gresford: My Lords, in moving this amendment, I shall speak also to Amendment No. 5. Again we are back on issues of powers that are not devolved. The purpose of these amendments is to widen the power of the commissioner to look at the cases of particular persons who are or have been older people in Wales, in connection with the commissioner's functions. One of those functions is for him to consider and make representations to the Assembly about any matter relating to the interests of older people in Wales. Again we come to an artificial distinction; whereas he can look at individual cases within the devolved areas, he cannot look at individual cases where the matter involved is non-devolved. For example, he could not examine an individual person's problems with his pension.
	To my mind, that takes a great deal away from the thrust of the Bill. We welcome this Bill; we have welcomed the Commissioner for Older People for Wales. It is a privilege to have such a commissioner, but to restrict his powers in this way and in important areas—I am merely repeating what I have said in relation to other amendments—destroys a great deal of the worth of his appointment.
	In relation to the Children's Commissioner, we have been proud that, unlike the English commissioner, the Welsh commissioner has been able to examine individual cases. I am sorry that this is not going to happen with the Commissioner for Older People. I beg to move.

Lord Evans of Temple Guiting: My Lords, I shall speak first to Amendment No. 4 before turning to Amendment No. 5, both standing in the names of the noble Lords, Lord Livsey of Talgarth, Lord Roberts of Llandudno and Lord Thomas of Gresford.
	Amendment No. 4 seeks to enable the Assembly to make provision in regulations for the examination of cases by the commissioner in connection with his functions and powers under Clauses 2, 3, 5 and 8. The Bill enables the commissioner to examine an individual case in connection with his functions. This reference to "functions" includes all of the commissioner's powers and duties except that of making representation to the Assembly on non-devolved matters.
	We will not agree on this issue. It comes up time and again, under almost any amendment. We have the new Wales Bill coming shortly and I am afraid that we will have to wait until then to look at the question of further devolution of powers to Wales. The amendment does not appear to add anything to the Bill. In fact, it might serve to narrow the commissioner's remit by preventing him examining a case in connection with any further supplementary powers that may be conferred on him by virtue of Clause 13.
	Amendment No. 5 seeks to give the commissioner a locus in non-devolved matters by enabling him or her to examine the case of an older person in Wales in connection with his power to make representation to the Assembly on non-devolved matters. We discussed this on Report and in Committee. As I explained on both those occasions, the Government's position is that it would be a breach of the constitutional settlement to allow the commissioner to exercise his powers directly in relation to non-devolved matters.
	It is important to recognise that in examining the circumstances of a particular case the commissioner will be able to require persons to provide him with information, explanations or assistance. He will also be able to require the attendance of witnesses in connection with such an examination and to examine those witnesses. If the noble Lords' amendments were to be accepted, the consequence would be that UK-wide public bodies and UK government departments with responsibility for non-devolved matters could be required to provide the commissioner with information or assistance. Individuals working in these organisations could also be required by the commissioner to attend as witnesses.
	Non-devolved functions are the responsibility of the UK Government and not of the Assembly. I hope that this is the last time that I will have to make that statement, which I think we are all fed up with. To enable a commissioner established by the Assembly and for Wales to exercise such powers in relation to non-devolved matters would simply not be acceptable. I ask the noble Lord to withdraw his two amendments.

Lord Thomas of Gresford: My Lords, the noble Lord should know that I have a certain persistence in these matters. In 1964 I stood as a parliamentary candidate in Rhyl, on a platform calling for a Parliament for Wales. In 1967 I drafted a Bill, which was presented in another place, for a Parliament for Wales with the sort of powers that I am anxious that this Government should give to Wales now. It is a lifelong matter.
	I hope that the noble Lord, who is perhaps not of the same history, will not be too critical of me for pursuing these matters. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 5 not moved.]

Lord Evans of Temple Guiting: moved Amendment No. 6:
	Page 6, line 30, leave out from "his" to "exercised" and insert "powers under sections 2(3) and (Research and educational activities), to the extent that they are"
	On Question, amendment agreed to.
	Clause 12 [Power of entry and of interviewing in private]:

Lord Roberts of Llandudno: moved Amendment No. 7:
	Page 8, line 12, after "section" insert "2,"

Lord Roberts of Llandudno: My Lords, we sometimes look at something and say, "What this could have been". Then we say, "But it has fallen far short of what we would like it to be". But possibly half a loaf is better than no bread. This might just be the beginning of an evolution of thinking in this direction.
	I draw your Lordships' attention to Amendment No. 8. In all our contributions from the Liberal Democrat Benches we are concerned that no older person in any circumstances whatever will feel that they are beyond the reach of a commissioner and of help. That is all that we want. Cross-border matters and non-devolved matters all affect older people. As my noble friend Lord Thomas of Gresford said, most problems that really affect people are connected with pensions and benefits. Those, of course, are non-devolved matters and, being so, the commissioner is unable to tackle them in any way at all. However, the citizen's advice bureaux tell us that those are the matters which most concern people.
	As the Minister said, the commissioner is appointed by the National Assembly. We have to accept the limitations of that office. As the Minister also said, we are to have a Government of Wales Bill. When that goes through the House we may have to revisit the powers of the Commissioner for Older People in Wales.
	The amendment to which I draw noble Lords' attention would ensure that no older person in a hospital, a care home, a residential home or even in his own home was beyond the reach of the commissioner's help. That is why we seek to enable the commissioner to interview a person in the latter's own home at the request of that individual.
	The elder abuse movement states that most instances of ill treatment of older people occur in their own homes. The Community and District Nursing Association conducted an elder abuse survey. Some 276 responses were received. The survey states:
	"The results have shown that 40% [of the responses] have witnessed or have been aware of elder abuse during 2004",
	with 82 per cent of those instances occurring in the patient's own home. The survey continues:
	"In 77% of cases referred to they are carried out by a family member of the victim".
	That is a very real worry. A person's own home should, at his or her invitation, be open to a commissioner to enable the latter to help the person. I am told that an opinion poll to be released in the next few weeks will show that 19 per cent of the general public are personally aware of elder abuse.
	We could press the amendments but, following extensive discussions, I believe that Her Majesty's Government are aware of the situation and that they are convinced that this Bill and existing legislation are sufficient to protect older people. The Minister knows that I am not totally convinced by that argument. However, the government amendments that are tabled today go a considerable way to meet our concerns, for which I am grateful.
	I may not speak again tonight as that enables us to cover the ground quickly. Therefore, I take this opportunity to thank the noble Lord, Lord Evans, and his colleagues for being open to discussion and for having responded to our concerns to a certain extent. I also thank the Bill team, who have been trying to meet our criticisms and anxieties. Having spoken to the amendment, I will beg leave to withdraw it at the appropriate time. I welcome government Amendments Nos. 11 and 16. I beg to move.

Lord Evans of Temple Guiting: My Lords, before I speak to Amendment No. 7, I say to the noble Lord, Lord Thomas of Gresford, that I have absolutely no argument with him. I have sympathy for his longstanding view that more powers ought to be passed to the Welsh Assembly. At every possible juncture, I have simply been saying that this Bill is not the vehicle in which to do that. The vehicle will be the Government of Wales Bill, which is coming later. If I have shown myself to be irritated with the noble Lord, Lord Thomas of Gresford, I apologise. There was no intention to do so; there was simply a certain frustration that we were going around in circles on this matter.
	The amendment would extend the purposes for which the commissioner may enter premises and interview an older person accommodated or cared for there by giving him a power to enter and interview for the purposes of his general functions under Clause 2. The purpose of the power to enter and interview is to facilitate the commissioner's specific powers to review arrangements and the discharge of functions. That may involve the need to obtain information from older people in relation to whom functions have been discharged or arrangements made. For example, an older person receiving domiciliary care from a local authority or regulated services from the provider of such services might be interviewed by the commissioner.
	In contrast, the commissioner's powers under Clause 2 are very general and are primarily concerned with more strategic matters of public policy. In exercising those general functions, the commissioner will be relying primarily on his own knowledge and expertise and on the expertise and experience of relevant stakeholder groups and professionals. The Government's view, therefore, is that to give the commissioner such a broad power would be both unnecessary and disproportionate. It would also be setting a precedent among other commissioners and ombudsmen, none of whom has such a power. I respectfully ask the noble Lord to withdraw his amendment.

Lord Roberts of Llandudno: My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 8 not moved.]

Lord Evans of Temple Guiting: moved Amendment No. 9:
	Page 8, line 15, leave out "in private" .

Lord Evans of Temple Guiting: My Lords, I shall speak first to government Amendments Nos. 9 and 11 before turning to Amendment No. 10 and government Amendments Nos. 15 and 16. On Report, the noble Lord, Lord Roberts of Llandudno, expressed his firm view that the Bill should ensure that there is the opportunity for an older person to be interviewed by the commissioner in the presence of an independent advocate. We agree that if an older person wants another person to be present when he or she is being interviewed by the commissioner, it should be a requirement that the interview must be conducted in the presence of that other person. Therefore, I have tabled government Amendments Nos. 9 and 11 to make that explicit in the Bill.
	Government Amendment No. 9 is a drafting amendment that simply removes "in private" from Clause 12(1)(b). That enables the first element of government Amendment No. 11 to provide that the commissioner must, if an older person so requires, interview him or her in the presence of another person of their choosing. That could include an independent advocate, although it would not be limited to such advocates alone. In circumstances where no such request is made by the older person in question, the second element of Amendment No. 11 requires that such an interview can take place in the presence of another person only to the extent that the commissioner and the older person have agreed that others may be present. I hope noble Lords will accept that this is designed to be a thoughtful response to the issues underlying their previous remarks and that Amendment No. 10 is therefore unnecessary.
	Government Amendments Nos. 15 and 16 have been tabled to ensure that where an older person who has agreed to be interviewed by the commissioner wishes to be interviewed in the presence of another person, that person must be present.
	Clause 13 enables the Assembly to make regulations that confer on the commissioner further supplementary functions for any purpose connected with his existing functions. Subsection (3) of that clause provides that such regulations may, for the purposes of any such supplementary functions, confer power on the commissioner to interview an older person.
	Government Amendments Nos. 15 and 16 ensure that any such power to interview an older person will mirror that in Clause 12. Thus the commissioner must, if an older person so requires, interview him or her in the presence of another person or, where no such request is made, in the presence of others only to the extent that the commissioner and the older person are content for others to be present. I beg to move.

Lord Roberts of Llandudno: My Lords, I respond once again to the amendments tabled by the Government. We appreciate what they have done. As I hinted before, we shall not press our amendments.

On Question, amendment agreed to.
	[Amendment No. 10 not moved.]

Lord Evans of Temple Guiting: moved Amendment No. 11:
	Page 8, line 15, at end insert—
	"( ) The interview must be conducted—
	(a) if the older person requires another person to be present, in that other person's presence; and
	(b) otherwise in the presence of others only to the extent that the older person and the Commissioner have consented to their being present."
	On Question, amendment agreed to.
	Clause 13 [Further supplementary functions]:
	[Amendments Nos. 12 and 13 not moved.]

Lord Evans of Temple Guiting: moved Amendments Nos. 14 to 16:
	Page 8, line 22, leave out from "his" to "exercised" and insert "powers under sections 2(3) and (Research and educational activities), to the extent that they are"
	Page 8, line 30, leave out "in private"
	Page 8, line 30, at end insert—
	"( ) Where regulations under subsection (1) confer power to interview an older person, the interview must be conducted—
	(a) if the older person requires another person to be present, in that other person's presence; and
	(b) otherwise in the presence of others only to the extent that the older person and the Commissioner have consented to their being present."
	On Question, amendments agreed to.
	Clause 14 [Reports following discharge of particular functions]:

Lord Evans of Temple Guiting: moved Amendment No. 17:
	Page 8, line 35, leave out from "his" to "exercised" and insert "powers under sections 2(3) and (Research and educational activities), to the extent that they are"
	On Question, amendment agreed to.
	Clause 19 [Complaints procedure in respect of the Commissioner]:

Lord Evans of Temple Guiting: moved Amendment No. 18:
	Page 13, line 24, at end insert "and obtain its approval"

Lord Evans of Temple Guiting: My Lords, on Report, my noble friends Lord Rowlands and Lord Prys-Davies, supported by the noble Lords, Lord Thomas of Gresford and Lord Roberts of Llandudno, made some extremely interesting points about the requirement in the Bill for the commissioner to establish a complaints procedure and consult with the Assembly on it. My noble friends wish to see a provision made not only for the commissioner to consult the Assembly about his complaints procedure, but to require him to obtain the Assembly's approval of it. We have reflected carefully on the views expressed on Report. Consequently, I have tabled government Amendment No. 18 which addresses the matter. By casting the Assembly in the role of final arbiter of the commissioner's complaints procedure, instead of the commissioner, the amendment will ensure that the procedure is sufficiently rigorous and impartial. I beg to move.

Lord Prys-Davies: My Lords, my noble friend Lord Rowlands first alerted your Lordships to the mischief in Clause 6 as drawn. I am sure that he will be particularly gratified that the Government have tabled this amendment. I welcome it wholeheartedly.

On Question, amendment agreed to.
	Schedule 1 [The Commissioner for Older People in Wales]:

Lord Roberts of Conwy: moved Amendment No. 19:
	Page 17, line 11, leave out "may" and insert "shall"

Lord Roberts of Conwy: My Lords, in moving this amendment I shall speak also to Amendment No. 20.
	There was a time when the detailed requirements in connection with appointments, such as that for the Commissioner for Older People, would be spelt out in primary legislation. That was the case with the Children's Commissioner; the terms and duration of the appointment were on the face of the Bill. Now, we are presented with a brief clause stating that there is to be a Commissioner for Older People, and a schedule which makes further provision. Paragraph 2 of the schedule provides that regulations "may make provision"—note the word "may"—as to the appointment, including any conditions, and as to the term of tenure, its cessation and the removal or suspension of the office holder.
	My first amendment deals with the permissive aspect of these regulations. Surely they must—not "may"—be made. How else, other than by secondary legislation, can the appointment be properly made? I note that paragraph 3 of the schedule states that the Assembly "must" do various things—other paragraphs also use "must"—such as pay the commissioner remuneration and allowances. Why is that a "must" and the making of regulations establishing the post a "may"? There must be a firm commitment to secondary legislation, or the rest becomes a nonsense.
	On Amendment No. 20, I think the Minister takes the view that a possible reappointment would be dealt with by the regulations providing for the appointment in the first place. I am not at all happy that we are leaving so much that could be put on the face of the Bill to subsequent secondary legislation. It is a time-consuming procedure, which serves no useful purpose other than to give the Assembly the trappings and semblance of legislative power. Alas, we shall see more of this so-called framework legislation when we come to the new Government of Wales Bill. We have already had a glimpse of it this evening with the NHS Redress Bill. I beg to move.

Lord Evans of Temple Guiting: My Lords, the intention of Amendment No. 19, which stands in the names of the noble Lords, Lord Roberts of Conwy and Lord Luke, appears to be to ensure that the Assembly makes regulations that provide for the appointment and term of office of the commissioner. The Government do not believe that such an amendment is necessary. The Assembly is committed to establishing the office of the commissioner, and Clause 1 of the Bill makes this intention clear. Noble Lords may also be reassured to know that the current wording in the schedule is identical to that found in the Care Standards Act 2000, pursuant to which the Children's Commissioner was appointed.
	Amendment No. 20 is the same in its intent as other amendments on this matter that were fully debated both in Committee and on Report. It seeks to make explicit provisions for regulations to deal with the reappointment of a commissioner, as well as for the initial appointment. I reassure the noble Lord that the term "appointment" most definitely encompasses reappointment. The Assembly will be able to make provision about this matter in regulations, and it has signalled its commitment to do so in its statement of policy intentions. Indeed, based on the views expressed in public consultation on the matter, the Assembly plans to provide for a four-year term, renewable once.
	During our consideration of a similar amendment on Report, the noble Lord, Lord Roberts of Conwy, said that his primary purpose in tabling the amendment was to draw attention to the differences in the provisions for reappointment of the Commissioner for Older People and the Children's Commissioner for Wales; he has retuned to that point this evening. However, the appointment and reappointment provision in this Bill is identical to that used in the Children's Commissioner for Wales legislation. The relevant paragraph states that:
	"Regulations may make provision . . . as to the appointment of the Commissioner (including any conditions to be fulfilled for appointment)".
	That is the exact form of words used in paragraph 2 of Schedule 1. I believe that the noble Lord, Lord Roberts of Conwy, may have been thinking of the UK Children's Commissioner, created by the Children Act 2004. The Act makes express provision for reappointment. However, in legislating for a Commissioner for Older People in Wales we have taken the decision that it is appropriate to follow the model for the Welsh Children's Commissioner and provide for the Assembly to determine the matter in regulations. That does not represent a change in legislative approach but a continuation of the approach taken in the Children's Commissioner for Wales legislation. I hope that with that explanation the noble Lord will feel able to withdraw his amendment.

Lord Roberts of Conwy: My Lords, I am grateful to the Minister for his comments on the two amendments. I am still concerned, as he must be, with the variety of wording that we have in various Bills that he and I have dealt with regarding appointments. We do not as yet seem to have fixed on a standard form of words in Bills for the appointment of important officials such as the Commissioner for Older People. I am still mystified as to why regulations "may make provision" in paragraph 2 of Schedule 1, but the next paragraph begins, "The Assembly must". I would have thought that the prior regulations—the ones that may be made—are more essential and indeed a sine qua non to what follows in the succeeding paragraph. However, I have had the benefit of the Minister's explanation and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 20 not moved.]
	An amendment (privilege) made.

Lord Evans of Temple Guiting: My Lords, I give my grateful thanks to those Peers who have taken part in the debate over the past few months; in particular, the noble Lords, Lord Roberts of Conwy, Lord Roberts of Llandudno, Lord Livsey and Lord Thomas of Gresford. It has been for me an extraordinarily interesting experience. I am grateful to all Peers for the way and the spirit in which they have debated this interesting Bill. On behalf of all Peers I must thank the Box, the officials from the Wales Office and those from the Assembly, who have done the most wonderful job over the months. Our grateful thanks to all there. I beg to move that the Bill do now pass.
	Moved, That the Bill do now pass.—(Lord Evans of Temple Guiting.)

Lord Roberts of Conwy: My Lords, for the second time this week perhaps I may speak to the Motion that the Bill do now pass by reciprocating the thanks given to us all by the Minister, whose performance throughout the Bill's conduct has been eximious.
	On Question, Bill passed, and sent to the Commons.

House adjourned at four minutes past ten o'clock.
	Wednesday, 15 February 2006.